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^ No. 12383
Winitth States!
Court of Sippeate
(or tfte ^intt) Circuit.
IVA IKUKO TOGURI D'AQIJIN
M
TOGURI B'AOiJIiJQx \
Q ^W %pellant,
UNITED STATES OF AMERICA,
Appellee.
ZKransftript of Eecorb
In Two Volumes
Volume I
(Pages 1 to 462)
Appeal from the United States District Court,
Northern District of California,
Southern Division. iia * 4«
MAY 4 1950
Phillips Cx Van Orden Co., 870 Brannan Street, San Francisco, Calif.
No. 12383
Court of Appeals;
for tfte Mnti) Circuit*
IVA IKUKO TOGURI D 'AQUINO,
Appellant,
vs.
UNITED STATES OF AMERICA,
Appellee.
Cransicript of 3^etorb
In Two Volumes
Volume I
(Pages 1 to 462)
Appeal from the United States District Court,
Northern District of California,
Southern Division.
Phillips Ct Van Orden Co., 870 Brannan Street, San Francisco, Calif.
INDEX
[Clerk's Note: When deemed likely to be of an important nature,
errors or doubtful matters appearing in the original certified record
are printed literally in italic; and, likewise, cancelled matter appear-
ing in the original certified record is printed and cancelled herein
accordingly. When possible, an omission from the text is indicated by
printing in italic the two words between which the omission seems
to occur.]
PAGE
Affidavit of Iva Ikuko Toguri D 'Aquino 331
Affidavit in Support of Motions 130
Affidavit in Support of Motions for Bail 11
Appeal :
Certificate of Clerk to Record on 865
Designation of Additional Contents of Rec-
ord on 864
Designation of Contents of Record on 854
Notice of 334
Notice of Motion for Admission of the De-
fendant to Bail Pending 328
Order Dispensing With Payment of Fees
and Costs of Printing Record on 334
Stipulation and Order That Original Pa-
pers and Exhibits Be Transmitted to
Court of Appeals for Use on 863
Certificate of Clerk to Record on Appeal 865
Defendant's Proposed Instructions 280, 290
Demand for Additional Bill of Particulars 47
ii Iva Ikuko Toguri D^ Aquino
INDEX PAGE
Demand for Bill of Particulars 35
Demand for Discovery and Inspection 40
Designation of Additional Contents of Record
on Appeal ' 864
Designation of Contents of Record on Appeal . . 854
Exhibits, Defendant's:
Murayama Deposition:
I— Letter Dated August 12, 1947. . 608
No. 2— Letter to Mr. Murayama 610
Pinto Deposition :
No. 1 — Certificate of Consular Registry
No. 90 745
2 — Marriage Certificate 747
3 — Record of Marriage 748
4 — Certificate of Registration 751
5— Afadavit 752
6 — Certificate of Consular Registry
No. 159 753
8 — Certificate of Consular Registry
No. 190 755
Exhibits, Government's:
Pinto Deposition :
I — Memorandum 757
Schenk Deposition :
I— Letter— Tokyo, 24 February 1949. . 534
vs. United States of America iii
INDEX PAGE
Indictment 2
Judgment and Commitment 327
Memorandum on Behalf of U. S. in Opposi-
tion, Defendant's Motions for a New Trial,
Judgment of Acquittal, and in Arrest of
Judgment 277
Minute Orders:
October 11, 1948 — Arraignment and Oral
Motion for Bail and Continuing Cause,
Hearing on Motion That Defendant Be
Admitted to Bail 8
October 14, 1948— That Defendant's Motion
for Bail Be Denied and Providing That
Marshal Provide Suitable Place of Con-
finement 34
January 3, 1949 — Denying Motion for Bill
of Particulars, Motion to Dismiss Indict-
ment and Motion to Strike Indictment —
Motion for Discovery and Inspection Be
Granted as to Request No. 7 but Denied
as to Remaining Requests (Plea of
^^Not Guilty") 114
March 14, 1949— Motion to Take Certain
Depositions Be Granted and That Re-
maining Motions Be Denied. 164
April 25, 1949 — Authorizing Issuance and
Service of Subpoenas and Motion for
iv Iva Ikuko Toguri D 'Aquino
INDEX PAGE
Minute Orders (Continued) :
List of Witnesses and Veniremen Be
Continued — Ordering. Case Be Con-
tinued 194
June 20, 1949— Granting Motion for Ad-
ditional Expenses, etc 236
June 22, 1949 — Quashing Subpoena Duces
Tecum Issued to Mr. DeWolfe 245
August 12, 1949— That Oral Motion for
Judgment of Acquittal Be Continued to
August 13, 1949 247
August 13, 1949 — Denying Defendant's Mo-
tion for Judgment of Acquittal 248
September 19, 1949 — Denying Motion to
Strike Certain Testimony; to Strike
U. S. Exhibits Nos. 2 and 15 ; to Dismiss
Indictment; and Motion for Acquittal. . . 251
September 26, 1949 — Court's Instruction
to Jury; Aileen McNamara, Excused for
Further Service; Marshal Instructed to
Provide Meals and Lodging for Jurors
and Marshals, etc 252
September 27, 1949— Re Portions of Tran-
script and Exhibit Requested by and De-
livered to Jury, etc 254
September 29, 1949 — Re Jury Requesting
and Receiving Certain Volumes of Testi-
vs. United States of America y
INDEX PAGE
Minute Orders (Continued) :
mony, and Further Instructions of the
Court; Jury's Verdict and Special Find-
ings, etc 255
October 6, 1949 — Denying Motion for New
Trial, Motion for Acquittal or New Trial,
and Motion in Arrest of Judgment,
Sentence 325
October 10, 1949 — Denying Motion for Bail
Pending Appeal 336
Motion for Acquittal or New Trial 262
Motion for Arrest of Judgment 261
Motion for Bill of Particulars 99
Notice of 98
Motion to Be Admitted to Bail 10
Notice of 9
Motion for Discovery and Inspection 78
Notice of 77
Motion to Dismiss Indictment on Defenses and
Objections Capable of Determination With-
out Trial of General Issue 86
Notice of 85
Motion to Dismiss Indictment 54
Exhibit A — Warrant of Arrest 67
vi Iva Ikuko Toguri D ^Aquino
INDEX PAGE
Motion for Lists of Witnesses and Venire-
men 173, 225
Notice of 172
Motion for New Trial 264
Motion for Order Authorizing and Directing
Issuance of Service of Subpoenas Requiring
Attendance of Witnesses at the Trial Herein
at the Expense of the
Government 117, 175, 196, 214
Notice of 116, 175, 195, 213
Motion for Order for Production, Examination
and Inspection of Records and Scripts 249
Motion for Postponement of Time of Trial .... 193
Notice of 192
Motion for Production of Documentary Evi-
dence 228
Motion to Strike 51
Notice of 50
Motion for Supplemental Order Authorizing
Additional Subsistence Expenses to Be Paid
Defendant's Counsel for Attending Examina-
tions of Witnesses 226
Names and Addresses of Attorneys 1
Notice of Appeal 334
Notice of Hearing Re Motions 116
vs. United States of America vii
INDEX PAGE
Notice of Motion for Admission of the De-
fendant to Bail Pending Appeal 328
Notice of Motion to Dismiss Indictment 53
Order Denying Motion for Lists of Witnesses,
etc 212
Order Denying Seven Motions and Granting
Defendant's Motion for Taking Depositions
Abroad 165
Order Dispensing With Payment of Pees and
Costs of Printing Record on Appeal 334
Order Granting Defendant's Motions for Order
Authorizing and Directing Issuance and
Service of Subpoenas of Defendant's Wit-
nesses at Trial Herein at the Expense of the
Government 208, 223
Order Granting Motion for Supplemental Order
Authorizing Additional Subsistence Expenses
to Be Paid by the Government to Defendant's
Counsel for Attending Examinations of Wit-
nesses 235
Notice of 234
Order Releasing Reporter's Transcript 862
Order Requiring Plaintiff to Supply Defendant
With Lists of Veniremen and Witnesses 237
Order Staying Execution 330, 862
Points and Authorities in Support of Motion
to Be Admitted to Bail 29
viii Iva Ikuko Toguri V Aquino
INDEX PAGE
Points and Authorities in Support of Motion
for New Trial 269
Points and Authorities in Support of Motion
to Strike 53
Special Findings by the Jury 258
Stipulation and Order That Original Papers
and Exhibits Be Transmitted to the U. S.
Court of Appeals for Use on Appeal 863
Stipulation to Taking Oral Designations Abroad 171
Subpoena to Testify 238
Supplemental Authorities on Motion for New
Trial 276
Supplemental Ground in Support of Motion
Heretofore Filed for Acquittal or New Trial 275
Verdict 260
Witnesses :
Depositions of:
(See Note Re Depositions) 337
Amamo, K. W.
— direct 815
— cross 821
—redirect 823
— recross 824
Dumoulin, Heinrich
— direct 759
— cross 766
vs. United States of America ix
INDEX PAGE
Witnesses — (Continued) :
Ghevenian, Lily
—direct 353
— cross 362
—redirect 371, 373
— recross 373
Hayakawa, Sumi Ruth
—direct 378
— cross 389
—redirect 393, 394
Kido, Unami
—direct 830
— cross 837
— redirect 840
Kodaira, Toshikatsu
—direct 671
Matsui, Suisei
—direct 614
— cross 643
— redirect 651
Murayama, Ken
— direct 845
— cross 850
Murayama, Tamotsu
— direct 538
— cross 579
—redirect 602, 603
— recross 602, 606
X Iva Ikuko Toguri D 'Aquino
INDEX PAGE
Witnesses — (Continued) :
Matsumiya, Kazuya
—direct 794
— cross 800
—redirect 802
Nakashima, Leslie Satoru
— direct 656
—cross 664
— redirect 666
Noda, George
—direct 339
— cross 344
Okada, Katsuo
—direct 771
—cross 782
— redirect 786
Ozasa, George
—direct 433
— cross 445
— redirect 548
— recross 460
Pinot, J. A. Abranches
—direct 727
—cross 738
— redirect 743
Saisho, Foumy
—direct 400
— cross 408
vs. United States of America xi
INDEX PAGE
Witnesses — (Continued) :
— redirect 412
— recross 412
Schenk, Nicolas
— direct 464
— recross 533
Tillitse, Lars Pedersen
—direct 806
— cross 810
Yanagi, Masaaki
— direct 417
— cross 426
NAMES AND ADDRESSES OF ATTORNEYS
WAYNE M. COLLINS, ESQ.,
GEORGE OLSHAUSEN, ESQ.,
THEODORE TAMBA, ESQ.,
1701 Mills Building,
San Francisco, California,
Attorneys for Defendant and Appellant.
FRANK J. HENNESSY, ESQ.,
United States Attorney,
Northern District of California,
Post Office Building,
San Francisco, California.
TOM DE WOLFE, ESQ.,
JAMES KNAPP, ESQ.,
Special Assistants to the United States
Attorney General,
Attorneys for the Plaintiff and Appellee.
2 Iva Ikuko Toguri B' Aquino
In the Southern Division of the United States
District Court, for the Northern District of
California.
No. 31712-R
UNITED STATES OF AMERICA,
Plaintiff,
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
INDICTMENT
Treason (Title 18 U.S.C, Sec. 1)
The Grand Jurors for the United States of Amer-
ica duly impaneled and sworn in the Southern Divi-
sion of the United States District Court for the
Northern District of California and inquiring in
and for that District and Division, upon their oaths
present :
1. That Iva Ikuko Toguri D 'Aquino, whose full
and true name is to said Grand Jurors unknown,
other than as hereinabove stated, hereinafter called
^'said defendant," was born in Los Angeles County,
California, on July 4, 1916, and she has been at all
times herein mentioned and is now a citizen of the
United States of America and a person owing alle-
giance to the United States of America.
2. That said defendant, at Tokyo, Japan, and
other places within the Empire of Japan, and out-
vs. United States of America 3
side the jurisdiction of any particular state and
district of the United States, continuously and at
all times beginning on or about the 1st day of No-
vember, 1943, and continuing thereafter up to and
including the 13th day of August, 1945, under the
circumstances and conditions and in the manner
and by the means hereinafter set forth, she then
and there being a citizen of the United States and
a person owing allegiance to the United States, in
violation of said duty of allegiance, did knowingly,
wilfully, unlawfully, feloniously, intentionally, trai-
torously and treasonably adhere to the enemies of
the United States, and more particularly, to wit, the
Imperial Japanese Government, with which the
United States at all times since December 8, 1941,
and during the times set forth in this indictment,
has been at war, and the Broadcasting Corporation
of Japan and the officials and employees thereof,
giving to the said enemies of the United States aid
and comfort within the United States, Japan and
elsewhere, that is to say :
3. That the aforesaid adherence of said defend-
ant and the giving of aid and comfort by her to
the aforesaid enemies of the United States during
the period aforesaid consisted :
(a) Of working as a radio speaker, radio an-
nouncer, radio script writer, and as a broadcaster
of recorded music in the short w^ave radio broad-
casting station of the Broadcasting Corporation of
Japan, a company controlled by the Imperial Jap-
anese Government, which work included the prepa-
4 Iva Ikuko Toguri D 'Aquino
ration and composition of radio scripts, talks and
announcements, the announcing of the same, and the
announcing and introduction of musical recordings
and talks for broadcast by radio from Japan to
members of the armed forces of the United States
and their allies in the Pacific Ocean area, and to
people elsewhere.
(b) Of working as a composer and organizer
of radio broadcasting programs for subsequent
broadcast by radio from Japan to members of the
armed forces of the United States and their Allies
in the Pacific Ocean area and to people elsewhere.
That the aforesaid activities of said defendant
were intended to destroy confidence in the war effort
of the United States and its Allies, to undermine
and lower American and Allied military morale,
to create nostalgia in the minds of the American
and Allied armed forces, to create war weariness
among members of the American and Allied armed
forces, to discourage members of the American and
Allied armed forces, and to impair the capacity of
the United States to wage war against its enemies.
4. And the Grand Jurors aforesaid upon their
oaths aforesaid do further present that said de-
fendant, in the prosecution, performance and execu-
tion of said treason and of said unlawful, traitor-
ous and treasonable adhering and giving aid and
comfort to the enemies of the United States as
aforesaid, at the several times hereinafter set forth
in the specifications hereof (being times when the
United States was at war with the Imperial Jap-
vs. United States of America 5
anese Government), did knowingly, wilfully, unlaw^-
fully, feloniously, traitorously and treasonably and
with treasonable intent in her to adhere to and give
aid and comfort to said enemies, perform, do and
commit certain overt and manifest acts which gave
aid and comfort to said enemies, that is to say :
1. That on a day between March 1, 1944, and
May 1, 1944, the exact date being to the Grand
Jurors unknown, said defendant, at Tokyo, Japan,
in the offices of the Broadcasting Corporation of
Japan, did discuss with another person the pro-
posed participation of said defendant in a radio
broadcasting program.
2. That on a day between March 1, 1944, and
June 1, 1944, the exact date being to the Grand
Jurors unknow^n, said defendant, at Tokyo, Japan,
in the offices of the Broadcasting Corporation of
Japan, did discuss with employees of said corpora-
tion the nature and quality of a specific proposed
radio broadcast.
3. That on a day between March 1, 1944, and
June 1, 1944, the exact date being to the Grand Jur-
ors unknown, said defendant, at Tokyo, Japan, in
a studio of the Broadcasting Corporation of Ja-
pan, did speak into a microphone regarding the in-
troduction of a program dealing with a motion pic-
ture involving war.
4. That on a date between August 1, 1944, and
December 1, 1944, the exact date being to the Grand
Jurors unknown, said defendant, at Tokyo, Ja])an,
6 Iva Ikuko Toguri D' Aquino
did speak into a microphone in a studio of the
Broadcasting Corporation of Japan referring to
enemies of Japan.
5. That on a day during October, 1944, the ex-
act date being to the Grand Jurors unknown, said
defendant, at Tokyo, Japan, in the offices of the
Broadcasting Corporation of Japan, did prepare a
script for subsequent radio broadcast concerning the
loss of ships.
6. That on a day during October, 1944, the ex-
act date being to the Grand Jurors unknown, said
defendant, at Tokyo, Japan, in a broadcasting stu-
dio of the Broadcasting Corporation of Japan, did
speak into a microphone concerning the loss of
ships.
7. That on or about May 23, 1945, the exact date
being to the Grand Jurors unknown, said defend-
ant, at Tokyo, Japan, in the offices of the Broad-
casting Corporation of Japan, did prepare a radio
script for subsequent broadcast.
8. That on a day between May 1, 1945, and July
31, 1945, the exact date being to the Grand Jurors
unknown, said defendant, at Tokyo, Japan, did
speak into a microphone in a studio of the Broad-
casting Corporation of Japan, and did then and
there engage in an entertainment dialogue with
an employee of the Broadcasting Corporation of
Japan for- radio broadcast purposes.
That said defendant committed each and every
one of the overt acts herein described with trea-
vs. United States of America 7
sonable intent and for the purpose of, and with
the intent in her to adhere to and give aid and
comfort to the Imperial Japanese Government, and
to the Broadcasting Corporation of Japan and the
officials and employees thereof, enemies of the
United States, and said defendant committed each
and every one of said overt acts contrary to her
duty of allegiance to the United States and to the
form of the statute and Constitution in such case
made and provided, and against the peace and dig-
nity of the United States.
That the Northern District of California was
the Federal Judicial District into which the de-
fendant was first brought shortly prior to the date
of the return of this indictment.
A True Bill.
/s/ JOHN P. JONES,
Foreman.
/s/ FRANK J. HENNESSY,
U. S. Attorney,
/s/ TOM DE WOLFE,
/s/ JOHN B. HOOAN,
Special Assistants to the
Attorney General.
Presented in open court and ordered Filed.
[Endorsed]: Filed October 8, 1948.
8 Iva Ikuko Toguri D 'Aquino
District Court of the United States, Northern
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Monday, the 11th day of October, in the year of
our Lord one thousand nine hundred and forty-
eight.
Present: The Honorable Louis E. Goodman,
District Judge, Sitting for and on Behalf
of Honorable Michael J. Roche, District
Judge.
[Title of Cause.]
(Minute Order Entry on Arraignment and
Oral Motion for Bail and Continuing Cause
to Oct. 14 at 1 :00 P.M. for Hearing on Motion
that Defendant Be Admitted to Bail.)
Now comes the United States Marshal and pro-
duced the defendant, Iva Ikuko Toguri D Aquino,
in open Court pursuant to provisions of bench
warrant heretofore issued. Wayne Collins, Esq.,
appeared as attorney for defendant. Tom De
Wolfe, Esq., Special Assistant to the Attorney Gen-
eral, and Hon. Prank J. Hennessy, United States
Attorney, were present for the United States.
On motion of Mr. Hennessy, the defendant was
called for arraignment. The defendant was duly
informed of the return of the Indictment by the
vs. United States of America 9
United States Grand Jury for the Northern Dis-
trict of California, at San Francisco, charging
defendant with violation of Title 18 U.S.C., Sec. 1,
(treason). The defendant was asked if she was
the person named therein, and upon her answer
that she was and that her true name was as charged,
thereupon Mr. Collins waived her reading of the
Indictment and copy thereof was handed to her.
The defendant stated that she understood the charge
against her.
Mr. Collins made an oral motion that the de-
fendant be admitted to bail.
Ordered that this case be continued to October
25, 1948, to plead; and October 14, 1948, at 1 p.m.,
for hearing of motion that defendant be admitted
to bail.
Further ordered that the defendant be admitted
to the custody of the United States Marshal.
[Title of District Court and Cause.]
NOTICE OF MOTION
To Frank J. Hennessy, U. S. Attorney, Attorney
for Plaintiff:
You will please take notice that, by order of this
Court duly made and entered on October 11, 1948,
the defendant's oral motion made in open court on
said date to be admitted to bail, which said motion
defendant's counsel then and there stated would
10 Iva Ikuko Toguri D' Aquino
be followed by the filing of a formal written mo-
tion therefor, copy of which is attached hereto, by
an order of said court duly made on said date was
set for hearing and argument before the said Court,
Hon. Louis E. Goodman, presiding, for Thursday,
October 14, 1948, at the hour of 1 o'clock p.m.
of said day.
s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Title of District Court and Cause.]
MOTION TO BE ADMITTED TO BAIL
Defendant moves the Court, under Title 18
USCA, Sec. 597, and Rule 46 (a) of the Rules of
Criminal Procedure for the District Courts of the
United States, to be admitted to bail.
This motion will be made on the oral motion
heretofore made, the pleadings herein, this motion,
notice thereof, affidavit and points and authori-
ties in support thereof.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Receipt of a copy of the above motion, notice
thereof, affidavit and points and authorities in sup-
port thereof, are admitted this 15th day of Octo-
ber, 1948.
/s/ FRANK J. HENNESSY,
Attorney for Plaintiff.
vs. United States of America 11
AFFIDAVIT IN SUPPORT OF MOTION
FOR BAIL
The defendant, Iva Ikuko Toguri D 'Aquino, an
adult female, now resides and continuously ever
since about July 25, 1941, has resided in Tokyo,
Japan, and, on April 19, 1945, there was lawfully
united in marriage to one, Felipe J. D 'Aquino, a
national and citizen of Portugal and resident in
Tokyo, Japan, according to the rites of the Ro-
man Catholic faith, by Father John Baptiste Kraus,
a duly ordained priest of the Jesuit Order of
the Roman Catholic Church, at Sophia Univer-
sity Chapel in Tokyo, Japan, and she thereby and
thereupon, pursuant to the law of Portugal, as also
the law of Japan, as also by the law of all other
civilized nations and by international law, became
and ever since then continuously has been and now
is a national and citizen of Portugal and as such
wdthin the exclusive lawful jurisdiction of the Gov-
ernment of Portugal while resident in Japan and,
as such a foreigner lawfully residing in Tokyo,
Japan, was and is entitled to the protection of the
laws of Japan, and was at all of said times and
now is without the lawful jurisdiction of the United
States ; that by reason of the foregoing, at all times
since her said marriage, which ever since has been
and now is in full force and effect, she continuously
has been and now is a bona fide resident of Ja-
pan, residing therein at 396 Ikejiri Machi, Seta-
gaya-Ku, Tokyo, with her said husband, and a
domiciliary, national and citizen of Portugal.
12 Iva Ikuko Toguri D' Aquino
While so residing with her husband in Tokyo, as
aforesaid, defendant forcibly was seized by agents
of the United States, without legal authority or
jurisdiction, at Yokohama, Japan, and was sub-
jected to arrest, detention and questioning on or
about September 5th and 6th, 1945, and thereafter
was released on said September 6, 1945.
While so residing with her husband in Tokyo,
as aforesaid, defendant forcibly was seized by agents
of the United States, whom affiant is informed and
believes were acting under the orders of the At-
torney General of the United States, on October
17, 1945, and w^as taken, by them, from her said
home and husband and confined to the Yokohama
Prison in Yokohama, Japan, where she was held
until November 16, 1945, when she was transferred
to Sugamo Prison in Tokyo, Japan, where she
remained until she was released therefrom by said
authorities on October 25, 1946. While so detained
and imprisoned she was, for approximately three
months, held incommunicado by said authorities
from her husband and visitors and without being
afforded any opportunity whatever to obtain coun-
sel or the assistance of any friend. The said ar-
rest and imprisonment were wholly without author-
ity of law and without valid process having issued
therefor.
Thereafter, on August 26, 1948, defendant again
was forcibly and unlawfully seized and arrested by
agents of the United States, acting under orders
of the Attorney General of the United States, with-
vs. United States of America 13
out any notice thereof being given by any of them
or by the United States to the Government of
Portugal, or to any of its diplomatic or consular
officers, albeit they knew she and her said husband
both were nationals and citizens of Portugal; and
thereupon said agents, so acting under said orders,
took her into custody, albeit without lawful right,
sanction, jurisdiction, authority or process there-
for, and imprisoned her in the said Sugamo Prison
in Tokyo, Japan, and thereafter, by agents of the
United States, was forcibly taken aboard the S.S.
General F. H. Hodges, a United States transport
vessel, in Yokohama Harbor, in custody of said
agents, and said vessel thereafter sailed therefrom
to the harbor of San Francisco, California; w^hen
and while said vessel, on September 25, 1948, there
was in progress of docking, the defendant was
seized aboard said vessel by agents of the U. S.
Federal Bureau of Investigation, one of whom was
Fred Tillman, a special agent, F.B.I., the names of
the four or five others being unknown to affiant,
upon a purported warrant of arrest issued upon a
complaint filed in this Court on September 25,
1948, being numbered and entitled Commissioners'
Docket No. 11, Case No. 5136, affiant being of the
opinion said purported warrant issued and said
complaint was filed before said vessel docked, as
aforesaid; that, thereupon, defendant was brought
before United States Commissioner Francis J. Fox
in the Post Office Building, San Francisco, Cali-
fornia, where, on her arrival at ai)proximately
14 Iva Ikuko Togiiri D' Aquino
11:40 a.m., in custody, defendant formally was ar-
rested by Hon. George Vice, U. S. Marshal for this
District, and thereupon, said Commissioner ordered
defendant into the custody of said Marshal and
continued her hearing on said complaint to Octo-
ber 7, 1948, affiant then and there appearing as
counsel for defendant; thereafter, on said October
7, 1948, said hearing was continued to October 14,
1948, with the consent of affiant, defendant's coun-
sel, in order to enable the grand jury for this dis-
trict to complete its inquiry into said matter.
On September 25, 1948, affiant was conferring
with his client, the defendant, at her place of de-
tention under the aforesaid order of said Commis-
sioner, to wit, County Jail No. 3, Dunbar and Wash-
ington Streets, San Francisco, California, at ap-
proximately 3 :30 p.m., when he was informed by the
matron in charge of said jail that he would have
to leave because a deputy U. S. Marshal was com-
ing to take her to the U. S. Marshal's office in the
Post Office Building, San Francisco, and it was
necessary for defendant to change from prison to
civilian garb. That affiant protested said interfer-
ence with the privileged conference between affi-
ant and defendant and thereupon left said jail and
was admitted to the office of County Jail No. 2 in
the same building where he telephoned Market
1-2500 and asked the operator at said number to
connect him with the U. S. Marshal's office and
thereafter was informed by her that there was no
answer to her ring and thereupon affiant requested
vs. United States of America 15
her to ring the U. S. Attorney's office and the tele-
phone of Thomas DeWolfe and John Hogan, Esqs.,
Special Assistant Attorney's General in that office
and thereafter was informed that none of said tele-
phones answered her rings and that the Marshal's
and U. S. Attorney's offices were closed as it was
Saturday afternoon;
Thereupon affiant returned to the corridor out-
side County Jail No. 3 where defendant was lodged
and waited and at approximately 3:55 p.m. Dep-
uty Marshal James Eagan appeared, was admitted
to said jail and emerged with defendant in his cus-
tody. I joined them and w^e entered an automo-
bile of the Federal Bureau of Investigation driven
by John Eldon Dunn, special agent of that bureau,
who drove us to the Federal Office Building, San
Francisco, where we entered the office of that Bu-
reau and there agents of that Bureau, acting under
the orders of the aforesaid Thomas DeWolfe and
John Hogan, holding defendant in duress and sub-
jecting her to duress, over her and my protests,
secretly attempted to question her in a room from
which affiant was excluded. Thereafter, on Monday,
September 27, 1948, affiant filed a formal protest
with said Commissioner, Marshal, Special Assist-
ant Attorneys General, agents of the said Bureau,
and others, a copy of said written protest being
attached hereto and incorporated herein.
The defendant is an indigent; aside from used
clothing and a few personal effects, the reasonable
value of which does not exceed $25.00, she pos-
16 Iva Ikuko Toguri D' Aquino
sesses the following assets only, viz., the equiva-
lent of approximately $100 in Japanese yen which
is on deposit on the Postal Savings Bank in To-
kyo, and a remote claim of right, subservient to
the right of the Alien Property Custodian, in and
to certain real property situated in Los Angeles
County, California, which property has an approxi-
mate value of $3,500, the interest of defendant
therein, however, being at most a disputable claim
and hence of substantially no value.
Defendant is a person of good moral character
and has not heretofore been accused of any crime.
It will be necessary for aiSant, in preparing the
defense of defendant, to interview witnesses, whose
number may exceed one hundred (100) persons; it
will be necessary for counsel to confer with defend-
ant in connection with each such witness to be in-
terviewed; it is essential to her said defense that
defendant personally see each witness and talk to
each such witness in the presence of her counsel;
such interviews are impossible while defendant is
detained in said County Jail No. 3, by reason of the
fact she there is held incommunicado from all per-
sons except her father, sister and affiant; no per-
son other than counsel is there permitted to visit
and see defendant face to face; defendant's father
and sister there are not permitted to see her fea-
tures nor could any of her witnesses by reason
of the fact that w^ere they to be allow^ed to visit
her they could speak to her only through double
vs. United States of America 17
iron mesh wires which obscures and prevents the
visibility of defendant and such persons ; the closed
section of the room there reserved for counsel to
interview clients is tiny, encased in glass, lacks
ventilation, and counsel and client are. separated
by a bench-like desk and a partition of glass ap-
proximately two and one-half feet high mounted
thereon, all of which render consultations difficult;
By reason of the fact she is detained in said
County Jail No. 3 where at all hours of the night
arrested women are incarcerated and make noise,
it is practically impossible for defendant to obtain
restful sleep, by reason of w^hich she growls in-
creasingly nervous and ill while under tension. De-
fendant is frail and weighs approximately 110
pounds. On January 5, 1948, she lost her baby at
birth. She suffers from recurrent arthritis.
There is no danger that defendant, if admitted
to reasonable bail, will depart from the jurisdic-
tion of the court; defendant and her counsel are
willing, if the court sees fit so to provide that she
be required to report periodically to the court or
any agent who may be designated by the court,
pending the final outcome of the cause.
/s/ WAYNE M. COLLINS,
Affiant.
Subscribed and sworn to before me this thir-
teenth day of October, 1948.
/s/ JANE M. DAUGHERTY,
18 Iva Ikuko Toguri D' Aquino
Notary Public in and for the City and County of
San Francisco, State of California.
Wayne M. Collins
Attorney at Law
Mills Tower, 220 Bush Street
San Francisco 4, California
Garfield 1-1218
September 27, 1948.
Hon. Francis J. Fox, U. S. Coramissioner, San
Francisco, Calif.
Hon. George Vice, U. S. Marshal, San Francisco,
Calif.
Hon. Tom C. Clark, U. S. Attorney General, Wash-
ington, D. C.
John Hogan, Special Asst. Attorney General, San
Francisco, Calif.
Thomas De Wolfe, Special Asst. Attorney General,
San Francisco, Calif.
H. M. Kimball, Agent in Charge, U. S. F.B.I., San
Francisco, Calif.
John Eldon Dunn, Special Agent, F.B.I., San Fran-
cisco, Calif.
Fred Tillman, Special Agent, F.B.I., San Fran-
cisco, Calif.
William Simon, Special Agent, F.B.I., San Fran-
cisco, Calif.
vs. United States of America 19
R. C. Kopriva, Special Agent, F.B.I., San Fran-
cisco, Calif.
Gentlemen :
Re: U. S. V. Iva Toguri D 'Aquino, Com.
Docket No. 11, Case No. 5136.
U. S. District Court, Northern District of
California, Southern Division.
On last Saturday morning, September 25, 1948,
near noon, I appeared as counsel for Mrs. Iva To-
guri D 'Aquino at her arraignment before U. S.
Commissioner Francis J. Fox on a purported charge
of a violation of Title 18, U. S. Code, Sec. 1, on a
complaint, wholly insufficient on its face for fail-
ing to state a public offense, filed by John Eldon
Dunn, special agent of the F.B.I., in the TJ. S.
District Court for the Northern District of Cali-
fornia, Southern Division. During the course of
that proceeding I orally and openly instructed Mrs.
D 'Aquino, my client, not to talk to or discuss the
charges therein contained with any officers, agents,
representatives, servants or employees of the U. S.
Government or any other person or persons and not
to make any verbal or written statement to any
such person or persons and not to answer any
questions that might be put to her by any such
person or persons without first consulting me.
Thereafter, near the close of said proceeding, I
orally requested the said Commissioner to inform
me where my client was to be taken at th(^ close
20 Iva Ikuko Toguri D^ Aquino
of the proceeding and he informed me that she was
in custody of the U. S. Marshal and would be
taken by the U. S. Marshal to his office in the
Post Office Building from whence she would be
taken to San Francisco County Jail No. 3. The
Hon. George Vice, U. S. Marshal, then and there
orally confirmed that statement to me. Thereupon
I asked whether she was to be taken from his
custody to the office of the F.B.I, for questioning
purposes, inasmuch as I had heard a statement from
someone in the hearing room that such a purpose
was intended, and was answered that she would
not so be taken. Thereupon, I orally informed those
present that I protested against any removal of my
client from said custody and protested against any
intended taking of her to any office of the F.B.I.
or before any agent or agents of the F.B.I, or
any other governmental officers or agencies for any
purposes whatsoever without judicial process there-
on first issuing and without advance notice to me
and thereupon I stated to the agents of the U. S.
then and there present that my client would not dis-
cuss the case or charges with any officer, agent, or
employee of the Government and asked them not to
seek so to do. The Hon. Francis J. Fox, U. S. Com-
missioner, the Hon. George Vice, U. S. Marshal,
Thomas Be Wolfe, attorney and Special Assistant
Attorney General, and John Eldon Bunn, special
agent of the F.B.I., among other governmental of-
ficers and agents, were present at said time and
place.
vs. United States of America 21
Thereafter my said client was escorted to the
U. S. Marshal's office in the Post Office Building
and, shortly thereafter, was escorted by U. S. Dep-
uty Marshal, by automobile, to S. F. County Jail
No. 3, where she was confined without bail by or-
der of U. S. Commissioner Francis J. Fox.
Thereafter, at about 2 :40 p.m. of said day, I went
to said Jail and was admitted to confer with my
client. My conference with my client was inter-
rupted at approximately 3:30 p.m. by the matron-
in-charge who informed me she had just received
a telephone call from the U. S. Marshal's office that
a deputy marshal was coming in an automobile to
take my client to the U. S. Marshal's office and that,
for said reason, my conference would have to be
teiminated because she had to arrange for Mrs.
D 'Aquino to change from her prison garb to civilian
clothes for that purpose and, although I orally pro-
tested on the ground the Marshal's office was closed
on Saturday afternoon and that no right existed to
remove her from the jail without being so author-
ized by judicial process, for any examination pur-
poses whatsoever and that no such process had or
could have been issued Saturday afternoon because
the courts were closed and no notice had been given
to me of any such intended removal for such pur-
poses and that any such removal was unauthorized
and violative of my client's rights, she informed
me she was acting under orders and would obey
those orders. Thereupon I was escorted to tlio door
and then took the elevator to the next floor, Countv
22 Iva Ikuko Toguri D' Aquino
Jail No. 2, where I was permitted to enter and
there telephoned Market 1-2500 and asked the op-
erator to connect me with the U. S. Marshal's of-
fice. The telephone operator informed me that she
tried to ring his office, that there was no answer,
that the Marshal's office was closed Saturday after-
noon. I requested her to connect me with the U. S.
Attorney's office and she thereafter informed me
that she had rung there and received no answer.
Thereupon I requested her to ring the telephone of
Mr. John Hogan and Mr. Thomas De Wolfe, Spe-
cial Assistant Attorneys General, and thereafter
she told me that neither of them answered her
rings. Thereupon I returned to the 3rd Floor of
that building and waited in the corridor outside
County Jail No. 3 for the arrival of the U. S. Dep-
uty Marshal.
At approximately 3:55 p.m. on said Saturday,
James Eagan, Deputy U. S. Marshal, appeared and
gained admittance to that Jail. My client there-
upon was delivered over to him and I accompanied
them down the elevator, through the courtyard and
the alley leading north to Washington Street to
a parked dark (FBI) sedan in which John Eldon
Dunn, special agent of the F.B.I., was sitting in
the rear seat. Thereupon Mr. Eagan entered the
car and sat in the front seat. Mr. Dunn thereupon
drove east on Washington Street and turned and
drove south on Montgomery Street, and parked at
the curb in front of the northern end of the Com-
mercial Union Building, 315 Montgomery, to leave
vs. United States of America 23
the car, as he said at the time to buy some cigar-
ettes in the Pacific National Bank Building lobby.
He returned in about four minutes without, how-
ever, exhibiting any such purchase, and thereupon
drove the car to the main center entrance of the
Federal Office Building in San Francisco and
parked the car near that entrance. Thereupon we
entered that building, took the elevator to the 4th
Floor and entered the office of the F.B.I, where
Mrs. D 'Aquino and I were invited to be seated in
the reception room.
Thereupon Mr. R. C. Kopriva of the F.B.I, in-
formed me that Mrs. D 'Aquino had been brought
there for questioning. I asked him who had or-
dered her brought there and who the persons were
who intended to question her. He informed me he
was not permitted to inform me of these matters. I
told him that I had instructed my client not to an-
swer any questions whatever for any person whom-
soever and then and there told her that I advised
her not to answer any questions w^hatever, upon
my advice, and she stated she would rely upon my
advice. I then informed him orally that she would
not answer any questions or talk to anyone about
the case, that the seizure of my client from the
County Jail No. 3 was highly improper; that the
seizure had interrupted a conference I then was
having with her ; that she was in the custody of the
U. S. Marshal, an adjunct of the U. S. District
Court, and not in that of the Special Assist-
ant Attorneys General, the F.B.L, or of any otlier
24 Iva Ikuko Toguri D' Aquino
XJ. S. officers, agents or agency; that it was an un-
warranted interference by executive officers with
the judicial branch of the U. S. Government; that
I had not been notified in advance by any of them
or anyone of her intended removal from the said
jail for interrogation purposes or of any questions
that w^ere to be put to her; that their conduct in
removing her from that jail to the office of the
F.B.I, was an interference with the privileged rela-
tionship of client and attorney existing between
Mrs. D 'Aquino and me and an unlawful and out-
rageous interference with her constitutional rights;
that I w^ould not willingly, nor would she, as my
client, willingly submit to any questioning or ex-
amination by agents of the F.B.I. or by Thomas
De Wolfe or John Hogan, Special Assistant Attor-
neys General, or by any other officers or agents of
the Government, except under protest and under
duress; that the attempt, since I was informed by
Mr. R. C. Kopriva and Mr. William Simon of the
F.B.I, that said persons chiefly were responsible
therefor, was a deliberate violation of the Fourth,
Fifth and Sixth Amendments of the U. S. Consti-
tution and also a violation of legal ethics and of the
rules of courtesy existing between adverse counsel
not to subject another lawyer's client. to the indig-
nity of examination in an adversary proceeding
without my knowledge or consent, and without a re-
quest and notice first being given and that they
were duty bound to proceed in an orderly legal
fashion and not violate the ethics of the legal pro-
vs. United States of America 25
fession which are binding upon attorneys whether
they are governmental attorneys or not. My client,
upon my instructions, thereupon stated to Mr. Ko-
priva that, upon my advice, she would decline to an-
swer any questions.
Thereupon, Mr. Kopriva said he would talk to
the agents interested, left the room and returned
and said the agents, whose names he refused to re-
veal to me, wanted her taken into their office for
five (5) minutes, that she would be taken there and
that I could not accompany her. I stated she would
not go willingly but only under duress and under
protest and would decline to answer any questions
that might be put to her. At my request Mrs.
D 'Aquino repeated this statement to him. Mrs.
D 'Aquino thereupon was taken by him into an
office down the corridor leading from the recep-
tion room and about three minutes later was re-
turned by him and requested to be seated in a chair
next to me. She stated to me in his presence that
she had been taken into a room where William
Tillman and John Eldon Dunn, agents of the F.B.I.,
and a stenographer were present and that she in-
formed them that, ux)on my advice as her counsel,
she declined to answer any questions and, although
they propounded questions to her, she declined to
answer, upon my advice, and thereupon had been
returned to the reception room.
Mr. Simon thereupon said to me that the F.B.I.
was obeying its orders in the matter, i.e., the or-
26 Iva Ikuko Toguri D' Aquino
ders of said John Hogan and Thomas De Wolfe,
Special Assistant Attorneys General. I repeated
my protests to him. I stated to him and Mr. Ko-
priva that those who were guilty of having ordered
my client removed from County Jail No. 3 and
brought to the F.B.I, office for questioning with-
out judicial process having issued thereon and with-
out notice to me were violations of my client's con-
stitutional and statutory rights; that it was an
executive interference with the judicial branch of
government and a usurpation of judicial power;
that it was a breach of legal ethics by the persons
responsible for and participating therein, or for
ordering said things to be done if they were attor-
neys, and a breach of the ordinary rules of cour-
tesy to which adversary counsel is entitled and that
all those guilty and responsible for this misconduct
had engaged in vicious reprehensible conduct. I
informed him and Mr. Kopriva that I would make
an issue of the matter and that if there were any
further attempts on the part of any officers, lawyers
or agents of the Government that I would make an
issue of each violation in open court.
Thereupon Mr. Dunn, Mr. Eagan, my client and
I left the room and got into Mr. Dunn's car and
were driven down town where I got out at Kearny
and Bush Streets and my client thereafter was
returned to County Jail No. 3.
Thereafter, upon reaching my office, 1701 Mills
Tower, San Francisco, I telephoned Market 1-2500
vs. United States of America 27
and the operator connected me with the telephone
of said Thomas De Wolfe. He answered my call
and I repeated the aforesaid occurrence to him
and asked him why my client had been seized and
removed under his and Mr. Hogan's instructions,
in manner as aforesaid, and at the outset he stated
he did not wish to discuss the matter with adverse
counsel on the telephone or to make any commit-
ments in the matter unless he had a colleague with
him, that he would not promise that such actions
w^ould not continue. Because of his reluctance to
discuss the matter over the telephone I informed
him that I would call upon him and Mr. Hogan
Monday, September 27, 1948, and that I would make
an issue out of this outrageous conduct.
I protest, condemn and censure that forced seiz-
ure and removal of my client from County Jail No.
3 as a prohibited- violation of the Fourth Amend-
ment of the U. S. Constitution. I protest, con-
demn and censure that forced seizure and removal
from that jail to .the office of the F.B.I, as a willful,
deliberate, wrongful and unauthorized interference
by the said executive officers and agents with the
judicial power of the U. S. District Court for the
Northern District of California, Southern Division,
in the absence of judicial process having issued
thereon for any such purpose; I protest, condemn
and censure that unlawful seizure and removal of
my client to the office of the F.B.I, by s^id agents
and agencies for secret questioning by them, with-
out advance and formal notice to me and without
28 Iva Ikuko Toguri D' Aquino
judicial process having issued thereon, as a direct
and deliberate violation of her constitutional right
not to be compelled to act as a witness against her-
self on the purported charge brought against her
and as a violation of her constitutional rights se-
cured to her by the provisions of the Fifth Amend-
ment of the U. S. Constitution. I protest, condemn
and censure that unlawful seizure and removal for
secret questioning as a violation of the code of
legal ethics by which attorneys, even attorneys for
the U. S. Government, as officers of the U. S. Dis-
trict Court, are bound, and as a deliberately wrong-
ful and wholly unjustified interference with the
privileged and confidential relationship of client
and attorney existing between Mrs. D 'Aquino and
me, and also as a distinctly discourteous action upon
the part of each and every officer and agent of the
Government guilty of such reprehensible conduct.
I brand such misconduct as being of a nature and
character we have always believed to be shunned in
the United States. We are not willing to follow or
adopt methods employed by Hitler's Gestapo and
Stalin's Ogpu in the violation of civil liberty and
constitutional right.
No opprobrium connected with this matter at-
taches to the U. S. Attorney's office in this judicial
district. Neither the Hon. Frank J. Hennessy, U. S.
Attorney, nor any of his Assistant U. S. Attorneys,
nor any member of their staff would ever have been
guilty of any such similar outrageous misconduct
vs. United States of America 29
nor would they or any of them have participated
in this outrage.
/s/ WAYNE M. COLLINS,
Attorney for Iva Toguri
D 'Aquino.
Copies to:
Hon. Frank J. Hennessy,
U. S. Attorney.
POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO BE ADMITTED TO BAIL
1. Title 18 USCA, Section 597, as amended June
27, 1940, referring to bail in capital cases, provides
as follows:
^'LTpon all arrests in criminal cases where the
punishment may be death, bail shall be taken only
by the Supreme Court or a district Court, or by a
justice of the Supreme Court, a circuit judge, or
a judge of a district court.''
2. Rule 46(a) of the Rules of Criminal Pro-
cedure for the District Courts of the United States,
referring to the Right to Bail, provides in part, as
follows :
^'A person arrested for an offense punishable
by death may be admitted to bail by any court or
judge authorized by law to do so in the exercise of
discretion, giving due weight to the evidence and to
the nature and circumstances of the offense."
30 Iva Ikuko Toguri D' Aquino
3. Originally, bail in treason cases was not spe-
cifically provided for by statute but it was allowed
by federal courts for special reasons in appropriate
cases because admission to bail is an incident of the
constitutional grant of judicial power and is an
inherent right of that power. See Hamilton v. U.S.,
3 Ball. (3 U.S.) 17, 1 L. Ed. 490, decided in 1795
when the then existing statute (Act of April 30,
1790, 1 Stat. 112, Sec. 4) provided only the death
penalty. The accused there, nevertheless, was ad-
mitted to bail.
And: U.S. V. Jones (1813) (CCPa) Fed. Case No.
15495, pg. 658, holding that one charged with piracy
(a capital offense) who was suffering from the
ravages of a disease which is injurious under con-
finement should be admitted to bail.
See also: U.S. ex rel. Herbert v. Marshal (1856),
Fed. Case No. 15, 726a, where a defendant was in-
dicted for murder and it was held that if it is clear
to the court that a conviction for manslaughter
might take place the accused should be admitted
to bail.
Where a conviction is had for treason, the present
rule is that the Court, in its discretion, may impose
a minimum imprisonment of five years and a $10,000
fine. See 18 USCA, Sec. 2.
In 1862, Congress enacted the Act of July 17,
1862, now 18 USCA, Sec. 2, which prescribes alter-
native punishments in treason cases and ever since
then it has been the recognized rule that an accused
vs. United States of America 31
indicted on a charge of treason may be admitted to
bail. The leading case first deciding this rule under
the new statute is Case of Jefferson Davis (CCA
Va.), (1867-1871), Fed. Case No. 3621a, at pages
78, 79, where bail was authorized.
4. In the great majority of the cases where
defendants have been convicted of treason by our
courts they have been sentenced to imprisonment.
We find no cases where a death sentence, imposed by
any of our courts, has been carried into execution.
In each of the cases where death sentences were
imposed by district courts and were not reversed
by appellate courts, our Presidents have commuted
the sentences or granted pardons. See Cramer v.
U.S., 325 U.S. 1, 24-25, 89, L. Ed. 1445, 1446, where
Mr. Justice Jackson, delivering the Opinion of the
Court states:
*^In the century and a half of our national exist-
ence not one execution on a Federal treason con-
viction has taken place. Never before has this Court
had occasion to review a conviction. In the few
cases that have been prosecuted the treason clause
has had its only judicial construction by individual
Justices of this Court presiding at trials on circuit
or by district or circuit judges. After constitutional
requirements have been satisfied, and after juries
have convicted and courts have sentenced. Presi-
dents again and again have intervened to mitigate
judicial severity or to pardon entirely."
32 Iva Ikuko Toguri B' Aquino
5. Inasmuch as the defendant, illegally and in
violation of the principles and rules of international
law, was seized by agents of the United States,
acting under orders of the Attorney General, out-
side the jurisdiction of the United States in Tokyo,
Japan, at the home and residence of the defendant
and her husband on August 26, 1948, and thereafter
forcibly was brought to San Francisco by agents of
the United States, although defendant and her hus-
band then were and ever since then have been and
now are nationals and citizens of Portugal and were
outside the jurisdiction of the United States and in
Japan but within the exclusive jurisdiction of
Portugal and entitled to the protection of the gov-
ernment of Portugal, she should be admitted to bail.
6. For the reason that the defendant has been
unlawfully kidnapped, brought to this country, in-
dicted and is indigent it is necessary for her con-
stantly to consult with her attorney in the prepara-
tion of her defense and for her, jointly with her
counsel, to interview in person many witnesses for
her defense and whereas such interviews are im-
possible to conduct at County Jail No. 3 where de-
fendant is confined and held incommunicado from
all visitors except her father, sister and counsel,
necessity and principles of international comity
and justice require she should be admitted to rea-
sonable bail for said purposes.
7. The Attorney General had neither constitu-
tional nor statutory authority or jurisdiction to
vs. United States of America 33
seize the defendant in Japan and remove her there-
from to San Francisco, his authority and jurisdic-
tion being limited to the continental United States
and, in consequence, there was no jurisdiction to
indict the defendant.
8. According to the law of the United States the
defendant, accused by indictment herein, neverthe-
less, is presumed to be innocent of the charges
therein preferred against her.
9. The foregoing demonstrate that the defendant
has a substantial defense to the indictment on pure
questions of law as well as on pure questions of fact
and demonstrate the right to or the probability of
a dismissal of the indictment or of an acquittal of
the charges preferred against her.
For the said reasons w^e respectfully urge that
the defendant be admitted to reasonable bail with
such safeguards as to the Court shall seem sufficient.
Respe<?tfully submitted,
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Endorsed] : Filed October 13, 1948.
District Court of the United States, Northern Dis-
trict of California, Southern Division
At A Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
34 Iva Ikuko Toguri B' Aquino
thereof, in the City and County of San Francisco,
on Thursday, the 14th day of October, in the year
of our Lord one thousand nine hundred and forty-
eight.
Present: The Honorable Louis E. Goodman,
District Judge, sitting for and on behalf
of Honorable Michael J. Roche, District
Judge.
[Title of Cause.]
OEDER
(Minute order that defendant's motion for
bail be denied and providing that marshal pro-
vide suitable place of ■confinement where de-
fendant will have full opportunity to interview
witnesses and consult with counsel.)
This case came on regularly this day for hearing
of motion for bail of defendant, Iva Ikuko Toguri
D 'Aquino, who was present in the custody of the
United States Marshal and with her attorney,
Wayne Collins, Esq. Hon. Frank J. Hennessy,.
United States Attorney, and Tom De Wolfe, Esq.,
Special Assistant to the Attorney General, were
present on behalf of the United States.
After hearing Mr. Collins and Mr. De Wolfe, it
is Ordered that said motion that defendant be ad-
mitted to bail be denied. Further ordered that the
United States Marshal provide suitable place of
confinement where defendant shall have full oppor-
tunity to interview witnesses on her behalf and
her attorney.
vs. United States of America 35
[Title of District Court and Cause.]
DEMAND FOR BILL OP PARTICULARS
Defendant demands a Bill of Particulars, failing
which defendant will apply to the court for an order
directing the plaintiff or the U. S. Attorney, attor-
ney for plaintiff, to furnish defendant a Bill of
Particulars, Acts, Pacts and Things specified in
the indictment in the above-entitled cause, as
follows :
1. A statement of the particular place or places
to which the word ^'elsewhere" on the last line of
paragraph 2 on line 13 of page 2 of the indictment
refers.
2. A statement of the particular place or places
to which the word ^^ elsewhere'' in paragraph 3(a)
on line 25 of page 2 of the indictment refers.
3. A statement of the particular place or places
to which the word ''elsewhere" in paragraph 3(b)
on line 29 of page 2 of the indictment refers.
4. A statement of the respect or respects in which
the Broadcasting Corporation of Japan was con-
trolled by the Imperial Japanese Government, as
alleged in paragraph 3(a) on page 2 of the indict-
ment, or the meaning of that word as therein used.
5. A statement whether or not the alleged ad-
herence of the defendant and the giving of aid and
comfort to the enemies specified generally in para-
graph 3 on pages 2 and 3 of the indictment actually
36 Iva Ikuko Toguri D 'A quino
had the effect or result of aiding and comforting
the enemies of the United States and, if so, in what
respect or respects.
6. A statement of the precise or approximate
time or times the defendant worked, announced and
wrote radio script as alleged in paragraph 3(a) on
page 2 of the indictment.
7. A statement of the nature, character and con-
tents, in substance or effect, of the statements made
by defendant as a radio speaker, radio announcer
and broadcaster of recorded music alleged in para-
graph 3(a) on page 2 of the indictment.
8. A statement of the nature, character and con-
tents, in substance or effect, of the radio script
prepared or composed by the defendant and of her
talks and announcements and announcements of
radio script alleged in paragraph 3(a) on page 2
of the indictment.
9. A statement of the nature and contents, in
substance or effect, of the announcements and intro-
ductions made by the defendant of musical record-
ings and talks for broadcast by radio from Japan
alleged in paragraph 3(a) on page 2 of the indict-
ment.
10. A statement of the name of the '^another
person," mentioned in overt act No. 1 in paragraph
1 on page 3 of the indictment, with whom the de-
fendant discussed the proposed participation of de-
fendant in the radio broadcasting program therein
mentioned.
vs. United States of America 37
11. A statement of the precise or approximate
time when overt act No. 1, mentioned in paragraph
1 on page 3 of the indictment, took place together
with a statement of the words spoken by each, in
substance or effect, in the discussion therein men-
tioned and the nature of the discussion.
12. A statement of the precise or approximate
time w^hen overt act No. 2, mentioned in paragraph
2 on page 3 of the indictment, took place, together
with the names of the employees of the Broad-
casting Corporation of Japan with whom the de-
fendant is alleged to have had the discussion therein
alleged, together with a statement of the words
spoken by each of them and defendant, in substance
or effect.
13. A statement of the precise or approximate
time when overt act No. 3, mentioned in paragraj)h
2 on page 4 of the indictment, took place, togethei-
with the words spoken by defendant into the micro-
phone, in substance or effect, and the nature of the
statements made.
14. A statement of the precise or approximate
time when overt act No. 4, mentioned in paragi-aph
4 on page 4 of the indictment, took place, together
with the words spoken by defendant, in substance or
effect, into the microphone and also a statement, in
substance or effect, of the precise reference alleged
therein to have been made by her concerning ene-
mies of Japan.
15. A statement of the precise or approximate
38 Iva Ikuko Toguri B' Aquino
time when overt No. 5, mentioned in paragraph 5
on page 4 of the indictment, took place, together
with the nature and contents, in substance and effect,
of the script prepared for subsequent radio broad-
cast concerning the loss of ships, the ships to which
it referred and the precise statement which was
made concerning the loss of ships, either in sub-
stance or effect.
16. A statement of the precise or approximate
time when overt act No. 6, mentioned in paragraph
6 on page 4 of the indictment, took place, together
with the words which were spoken, in substance or
effect, concerning the loss of ships, together with
a statement of what ships the statement referred to.
17. A statement of the precise or approximate
time when overt act No. 7, mentioned in paragraph
7 on page 4 of the indictment, took place, together
with a statement of the nature and contents, in
substance or effect, of the radio script therein
alleged to have been prepared.
18. A statement of the precise or approximate
time when overt act No. 8, mentioned in paragraph
8 on page 4 of the indictment, took place, together
with the words, in substance or effect, which were
spoken into the microphone and the names of each
of the persons who engaged in the entertainment
dialogue therein mentioned and the words spoken,
in substance or effect, by any of the participants in
the entertainment dialogue therein mentioned.
In case of your neglect or refusal so to furnish
said particulars to said defendant, defendant will
vs, TJ^iited States of America 39
apply to the court for an order directing compliance
with this demand.
Dated: October 27, 1948.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
State of California,
City and County of San Francisco — ss.
Wayne M. Collins, being first duly sworn, deposes
and says: that he is attorney of record for Iva
Ikuko Toguri D 'Aquino, defendant herein; that he
has read the foregoing demand for bill of par-
ticulars and knows the contents thereof; that he
verily believes the fact to be that the defendant
cannot safely go to trial on the indictment herein
without the details and particulars of the matters
requested in the foregoing demand for a bill of par-
ticulars and that said details and particulars are
essential and necessary to inform defendant of the
nature of the accusation against her with sufficient
precision to enable her to prepare for trial, to pre-
vent being taken by surprise thereat and to permit
her to plead the conclusion thereof in bar of another
prosecution on the same charge.
/s/ WAYNE M. COLLINS.
Subscribed and sworn to before me this 27th day
of October, 1948.
[Seal] /s/ JANE M. DOUGHERTY,
Notary Public in and for the City and County of
San Francisco, State of California.
Receipt of copy acknowledged.
[Endorsed] : Filed October 27, 1948.
40 Iva Ikuko Toguri D' Aquino
[Title of District Court and Cause.]
DEMAND FOR DISCOVERY AND
INSPECTION
Defendant demands the right to inspect and copy
or photograph the hereinafter designated papers,
documents or tangible objects, obtained from or be-
longing to the defendant or obtained from others
by seizure or process, which said papers, documents
or tangible objects, hereinafter specified, are ma-
terial to the preparation of defendant's defense, viz:
(1) The statement, purporting to be made up,
in part, of an oral statement of the defendant ob-
tained from her and taken down in pencil by Ser-
geant Page (Paige?) of the Counter Intelligence
Corps of the U. S. Eighth Army in Japan, acting
under the orders of Brigadier General Richard
Thorpe and Lt. Col. Turner of the said Corps and
Army at the Yokohama New Grand Hotel, Yoko-
hama, Japan, on or about September 6, 1945, which
purports to set forth a narration of defendant's
residence, employment, marriage to Philip (Felipe)
J. D 'Aquino, a national, citizen and domiciliary
of Portugal residing in Japan, and her activities in
Japan from July, 1941, to the date thereof, the
defendant being at said time and place held under
restraint by said army authorities.
(2) The picture or pictures of the defendant and
General Eichelberger, U.S.A., taken at the order of
said General at the Yokohama New Grand Hotel,
vs. United States of America 41
Yokohama, Japan, on or about September 6, 1945.
(3) The motion picture film and sound recording
(sound film) synchronized therewith made of the
defendant at Radio Tokyo, Tokyo, Japan, on or
about October 1, 1945, on orders of the Signal Corps
of the U. S. Eighth Army in Japan, and the radio
script, consisting of several pages, then and there
prepared for the same by a Second Lieutenant, U. S.
Army, whose name was Cadeson or Kadeson or a
name similarly pronounced, which defendant, by
said person, was ordered to read into said sound
film and thereafter at said time and place was or-
dered signed by defendant in her maiden name Iva
I. Toguri and also, in quotes, ^^ Tokyo Rose," to-
gether with several other pages of radio script then
and there obtained by said person from the defend-
ant.
(4) The typewritten, signed and witnessed state-
ment, purporting to be made up, in part, of an oral
statement obtained from the defendant and drawn
up from pencil or ink notes made by a Mr. Hetrick
who was in a U. S. Army uniform and either a
member of the Counter Intelligence Corps of the
U. S. Eighth Army in Japan, or attached thereto,
or a member of the U. S. Department of Justice
or a member of the U. S. Federal Bureau of Inves-
tigation, at Sugamo Prison in Tokyo, Japan, on or
about December, 1945, the defendant then and there
being held under restraint and imprisoned by U. S.
authority which restraint and imprisonment com-
menced on 0<^tober 17, 1945, and continued until
42 Iva Ikuko Toguri D' Aquino
October 25, 1946, when defendant was released
therefrom, together with the said notes, the said
statement purporting to set forth a narration of
defendant's residence, marriage to Philip (Felipe)
J. D 'Aquino, a national, citizen and domiliary of
Portugal residing in Japan, and her employment
and activities in Japan from July 1941, to the date
thereof.
(5) The typewritten, signed and witnessed state-
ment, purporting to be made up, in part, of an oral
statement obtained from the defendant by and
drawn up by Fred Tillman, special agent of the
U. S. Federal Bureau of Investigation, from his
notes, he then being in IT. S. Army uniform and
attached to the Counter Intelligence Corps or the
U. S. Eighth Army in Japan, and thereafter signed
by defendant at Sugamo Prison, Tokyo, Japan, on
or about April, 1946, together with the original notes
thereof, the defendant being held in restraint and
imprisoned at said Sugamo Prison at said times by
the United States, said statement purporting to
narrate the history of defendant's residence, mar-
riage and employment in Japan from July, 1941, to
the date thereof.
(6) The photostat copy of notes purporting to
be made by Clark Lee and purporting to be or to
relate to an interview of the defendant by Harry
Brundidge and Clark Lee, newspaper correspond-
ents attached to the U. S. Eighth Army in Tokyo,
Japan, purporting to have taken place on or about
vs. United States of America 48
September 2, 1945, at the Imperial Hotel in Tokyo,
Japan, said photostat copy of notes being initialed
*^ID'A" on each page thereof and signed in de-
fendant's name on or about March 26, 1948, at the
building of General Headquarters of the United
States Army, Tokyo, Japan, to which defendant
forcibly was brought by agents of the United States
from her home and sick bed in Tokyo, Japan, the
said Harry Brundidge and one, John Hogan, a spe-
cial assistant to the U. S. Attorney General, being
present at said time and place, said photostat copy
of notes purporting to relate to the history and
activities of defendant in Japan from 1941 to the
date thereof.
(7) The package of typewriter sized foolscap
paper, consisting of a series or number of original
and perhaps, a number of carbon copies, of type-
written pages or script, approximately one-half
inch thick, obtained from the defendant by agents
of the Counter Intelligence Corps of the U. S.
Eighth Army in Japan, namely, Sergeant Page
(Paige?) for Lt. Col. Turner at Yokohama, Japan,
on or about September 15, 1945, said pa<3kage of
papers thereafter being in the possession of Fred
Tillman, special agent of the U. S. Federal Bureau
of Investigation, who, on or about April, 1946, at
Sugamo Prison, Tokyo, Japan, obtained defendant V
initialing of each page thereof while she was held
in restraint and duress at said prison by United
States authority, said papers in said package of
44 Iva Ikuko Toguri B' Aquino
papers being in the nature of radio script pur-
porting to have been prepared for broadcast from
Eadio Tokyo.
(8) Any and all phonographic tape, wire, elec-
trical, magnetic, sound or other types of records,
recordings or transcriptions made, manufactured,
received or intercepted, and in the possession of or
available to plaintiff, of any and all of the Zero
Hour programs of Radio Tokyo or radio station
JOAK on which the prosecution asserts or will
assert at any trial herein th,at the defendant or per-
son designated or known or referred to as ^^ Orphan
Ann,'^ '^ Orphan Annie" or ^' Tokyo Rose" spoke,
talked, recorded, announced or broadcasted any
statement, matter or thing, together with any and
all of the musical records or pieces or recordings
thereof which the prosecution asserts or will assert
at any trial herein that such person played, an-
nounced or broadcast thereon, covering the period
of time from or about November 1, 1943, to and
including August 15, 1945.
(9) Any and all recordings of the defendant's
voice made on or about January 6, 1946, at Radio
Tokyo, in Tokyo, Japan, obtained from the defend-
ant by order of the Counter Intelligence Corps of
the U. S. Eighth Army in Japan, which the prose-
cutix)n asserts or will assert at any trial herein to
be a recording of defendant's voice.
(10) Any and all recordings of the defendant's
voice made on or about February, 1948, at Radio
vs. United States of America 45
Tokyo, in Tokyo, Japan, obtained from the defend-
ant by order of the Counter Intelligence Corps of
the U. S. Eighth Army in Japan, which the prose-
cution asserts or will assert at any trial herein to
be a recording of defendant's voice.
(11) Several pages of handwritten script on
typewriter sized foolscap paper, the contents pur-
porting to be radio script, obtained from the de-
fendant at Yokohama Prison, Yokohama, Japan,
by Col. Robert Hardy, U.S.A., officer in charge of
that prison, on or about October 17, 1945, w^hich
purports to be radio script prepared for broadcast.
(12) Any and all other papers, documents, rec-
ords and things the United States or its agents
obtained, if any, from the defendant, her husband
or her home and residence situated at No. 396 Ike-
jiri Machi, Setagaya Ku, Tokyo, Japan, during the
enforced absence therefrom of the defendant, which
has or may have any bearing on any issues involved
in this -cause whether or not the plaintiff or its
agents intend to use or offer any such evidence at
any trial of the issues herein.
Inspection of each and all of the above-mentioned
statements, documents and things, obtained from
defendant as above stated, are or may be material
to the preparation of defendant's defense to the
indictment herein and are in the possession of or
available to the plaintiff, or its agents, representa-
tives and attorney.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
46 Iva Ikuko Togiiri D' Aquino
State of California,
City and County of San Francisco — ss.
Wayne M. Collins being first duly sworn deposes
and says: that he is attorney of record for Iva
Ikuko Toguri D 'Aquino, defendant herein; that he
has read the foregoing Demand for Discovery and
Inspection and knows the contents thereof ; that as
such attorney he has investigated the facts concern-
ing each of the twelve statements, documents and
records mentioned therein; that he verily believes
the facts to be true which therein are recited or
narrated in said motion; that each of the items
therein sought to be inspected, examined and copied
or photographed are, for the reasons therein stated,
material to the preparation of defendant's defense
to the charges brought against her in the indictment
in said cause and he verily believes that defendant's
request and motion for discovery and inspection
thereof is reasonable.
/s/ WAYNE M. COLLINS.
Subscribed and sworn to before me this 3rd day
of November, 1948.
[Seal] /s/ JANE M. DOUGHERTY,
Notary Public in and for the City and County of
San Francisco, State of California.
Eeceipt of copy acknowledged.
[Endorsed] : Filed November 3, 1948.
vs. United States of America 4U
[Title of District Court and Cause.]
DEIMAND FOR ADDITIONAL
BILL OF PARTICULARS
Defendant demands an Additional Bill of Par-
ticulars, failing which defendant will apply to the
court for an order directing the plaintiff or the U. S.
Attorney, attorney for plaintiff, to furnish defend-
ant an Additional Bill of Particulars, Acts, Facts
and Things specified in the indictment in the above-
entitled cause, as follows:
19. A statement of the times and places w^here
defendant was arrested in Japan and confined to
prison by agents of the United States, and there-
after released therefrom, the periods of time of said
imprisonments, the authority and purpose for the
said arrests and commitments to imprisonment and
discharges therefrom, and a statement of the pur-
pose for which and the authority under which de-
fendant was arrested in Japan and brought to San
Francisco in this Federal Judicial District shortly
prior to the date of the return of the indictment
herein, as alleged in the final paragraph on page 4
of the indictment, and also a statement whether or
not each of her said arrests and imprisonments and
releases therefrom, and her removal from Japan to
San Francisco, and each of said things, were done
with the consent and authority of the Allied Powers,
48 Iva Ikuko Toguri D' Aquino
the government of Portugal, and the government of
Japan or of any of said sovereign powers.
20. A statement whether the employment of de-
fendant as a radio operator, radio announcer, radio
script writer and broadcaster of recorded music, as
alleged in paragraph 3(a) of the indictment, was or
was not in a capacity for w^hich only Japanese na-
tionals were eligible.
21. A statement of the facts upon which are
based the conclusions in the indictment, in para-
graph 1 on page 1, paragraph 2 on page 2 and para-
graph on top of page 4, that defendant is a citizen
of the United States and a person owing allegiance
to the United States.
22. A statement whether or not the defendant at
Tokyo, Japan, was united in marriage to her now
husband, Felipe J. D 'Aquino, on April 19, 1945, who
then was and ever since then has been and now is
a national, citizen and domiciliary of Portugal
residing in Japan.
23. A statement wiiether or not the United States
heretofore, wdthin the past three years, arrested
defendant thrice or at all in Japan on the same
accusation of treason as -charged in the indictment
herein and imprisoned her thrice and thereafter,
acquitted her of the charges or convicted her thereon
or sentenced or imprisoned her thereon and there-
after liberated her from such imprisonment at any
time and, if so, when.
vs. United States of Aynerica 49
In case of your neglect or refusal so to furnish
said particulars to said defendant, defendant will
apply to the court for an order directing compliance
with this demand.
Dated : November 3, 1948.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
State of California,
City and County of San Francisco — ss.
Wayne M. Collins, being first duly sworn, deposes
and says: that he is attorney of record for Iva
Ikuko Toguri D 'Aquino, defendant herein; that he
has read the foregoing demand for an additional
bill of particulars and knows the contents thereof;
that he verily believes the fact to be that the de-
fendant cannot safely go to trial on the indictment
herein without the details and particulars of the
matters requested in the foregoing demand for an
additional bill of particulars and that said details
and particulars are essential and necessary to in-
form defendant of the nature of the accusation
against her with sufficient precision to enable her
to prepare for trial, to prevent being taken by sur-
prise thereat and to permit her to plead the con-
50 Iva Ikuko Toguri D' Aquino
elusion thereof in bar of another prosecution on,
the same charge.
/s/ WAYNE M. COLLINS.
Subscribed and sworn to before me this 3rd day
of November, 1948.
[Seal] /s/ JANE M. DOUGHERTY,
Notary Public in and for the City and County of
San Francisco, State of California.
Receipt of copy acknowledged.
[Endorsed] : Filed November 3, 1948.
[Title of District Court and Cause.]
NOTICE OF MOTION TO STRIKE
To Hon. Frank J. Hennessy, U. S. Attorney, At-
torney for Plaintiff.
You will please take notice that on Monday,
November 22, 1948, at the hour of 10 o'clock a.m.
of said day, or so soon thereafter as counsel can be
heard, the defendant will bring on for hearing the
within Motion to Strike upon the grounds and for
the reasons set forth therein.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Receipt of copy acknowledged.
vs. United States of America 51
[Title of District Court and Cause.]
MOTION TO STRIKE
The defendant moves the court for its order
striking the whole of the indictment herein and, if
the whole be not ordered stricken, she moves the
court to strike the following matter therefrom, to
wit :
1. The phrase ^'knowingly, wilfully, unlawfully,
feloniously, intentionally, traitorously and treason-
ably" appearing in paragraph 2 on lines 5 and 6
of page 2 thereof, the same being conclusions of the
pleader;
2. The phrase ^^and the officials and employees
thereof" appearing in paragraph 2 on line 11 of
page 2 thereof;
3. The words *' within the United States, Japan
and elsewhere" appearing in paragraph 2 on lines
12 and 13 of page 2 thereof ;
4. The word '^elsewhere" appearing in para-
graph 3(a) on line 25 of page 2 thereof;
5. The word '* elsewhere" appearing in para-
graph 3(b) on line 29 of page 2 thereof;
6. The phrase ^^and their Allies in the Pacific
Ocean area" appearing in paragraph 3(a) on lines
24 and 25 on page 2 thereof;
7. The words ^^and its Allies" in paragraph 3
on line 1 of page 3 thereof;
52 Iva Ikuko Toguri D^ Aquino
8. The words ^^and Allied" in paragraph 3 on
line 1 of page 3 thereof;
9. The words ^^and Allied" appearing in para-
graph 3 on line 2 of page 3 thereof ;
10. The words '^and Allied" appearing in para-
graph 3 on line 4 of page 3 thereof ;
11. The words ^'and Allied" appearing in para-
graph 3 on lines 4 and 5 of page 3 thereof ;
12. The phrase ^^ knowingly, wilfully, unlawfully,
feloniously, traitorously and treasonably" in para-
graph 4 on lines 14 and 15 of page thereof ;
13. The w^hole of paragraph 2 thereof;
14. The whole of paragraph 3, 3(a) and 3(b)
thereof ;
15. The whole of paragraph 4 thereof;
16. The whole of paragraph 4, including its sub-
divisions 1, 2, 3, 4, 5, 6, 7 and 8 ;
17. The whole of said indictment.
Said motion will be made on the indictment, this
motion, notice hereof, and upon all the pleadings,
papers, documents and files herein.
The said matter in said indictment and the said
indictment will be sought to be stricken upon the
grounds that said same are (1) sham, (2) irrelevant,
(3) redundant, (4) immaterial, (5) superfluous,
(6) repetitious, (7) umiecessary, (8) multifarious
and (9) conclusions.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
vs. United States of America 53
POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO STRIKE
Under Art. Ill, Sec. 3, CI. 1, treason consists
only of levying war against the United States or in
adhering to the enemies of the United States, giving
them aid and comfort, and, in consequence, can be
committed only against the United States.
Actions against Allies, that is to say, foreign
sovereigns cannot constitute treason against the
United States.
^^Constructive'' treason is not recognized by
American law. See Shortridge v. Macon, 22 Fed.
Cas. No. 12,812, and also U.S. v. Burr, 25 Fed.
Cas. No. 14,692a.
In consequence, the reference to the Allies made
in the indictment are irrevelant and surplusage.
Respectfully submitted,
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Endorsed] : Filed November 15, 1948.
[Title of District Court and Cause.]
NOTICE OF MOTION TO DISMISS
INDICTMENT
To Hon. Frank J. Hennessy, U. S. Attorney, At-
torney for Plaintiff.
You will please take notice that on Monday, No-
54 Iva Ikuko Toguri D' Aquino
vember 22, 1948, at the hour of 10 o'clock a.m. of
said day, or so soon thereafter as counsel can be
heard, the defendant will move the above-entitled
Court to dismiss the indictment herein upon the
grounds and for the reasons set forth in the within
Motion to Dismiss.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Title of District Court and Cause.]
MOTION TO DISMISS INDICTMENT
The defendant moves to quash and dismiss the in-
dictment upon each and all of the following grounds
and for the following reasons, to wit:
(1) The indictment fails to state facts sufficient
to constitute an offense against the United States
for failing to be a plain, concise and definite writ-
ten statement of the offense charged, being vague,
indefinite and uncertain in material respects in that
the charges are so general that they do not inform
the defendant of the acts of which she is accused
with sufficient precision and description to enable
her to prepare her defense thereto.
(2) Inasmuch as the indictment purports to
plead treason in broad and general terms, that is to
say, by pleading adherence to enemies through giv-
ing them aid and comfort, in paragraphs 2 and 3
of the indictment, without, however, specifying the
vs. United States of America 55
particulars of that adherence, aid and comfort and
then, following those general allegations pleads spe-
cial overt acts, in paragraph 4 thereof, which are
vague, indefinite and uncertain on their face but
are innocent and ineffective acts, as pleaded, and
these special allegations limit and control the gen-
eral allegations of treason, the indictment fails to
state facts sufficient to constitute an offense against
the United States. ,
(3) The court has no jurisdiction over the per-
son of the defendant.
(4) The court has no jurisdiction over the per-
son of the defendant because neither the Constitu-
tion nor Congress has authorized the seizure of the
defendant at her residence in Japan or her removal
therefrom to San Francisco.
(5) The court has no jurisdiction over the de-
fendant because she w^as seized illegally at her resi-
dence in Japan by agents of the U. S. and brought
to San Francisco in violation of the sovereignty of
Portugal, of which country she is a national, citi-
zen and domiciliary, and in violation of the sov-
ereignty of Japan where she resides and hence also
in contravention of principles of international law.
(6) The court has no jurisdiction over the of-
fense alleged in the indictment which therein is
stated to have taken place outside the jurisdiction
of the United States on foreign soil by defendant
as a resident of Japan.
56 Iva Ikuko Toguri D' Aquino
(7) The court has no jurisdiction of the offense
alleged in the indictment because the defendant
was seized illegally at her residence in Japan and
forcibly brought to San Francisco by agents of the
United States without the authority and consent
of the Government of Portugal and against the
sovereignty of Portugal.
(8) The court has no jurisdiction of the of-
fense alleged in the indictment because the defend-
ant was seized illegally at her residence in Japan
and forcibly brought to San Francisco by agents
of the United States without the authority and con-
sent of the Government of Japan and against the
sovereignty of Japan.
(9) Neither this judicial district nor this court
is the proper venue for the trial of the offense
alleged in the indictment because neither the Con-
stitution nor Congress has authorized any place
whatever as the place of trial on treason charges
alleged to have been committed in Japan by a Por-
tuguese national or any other person residing
within the geographical boundaries of Japan.
(10) The court has no jurisdiction of the of-
fense alleged in the indictment because neither the
Constitution nor Congress has authorized or desig-
nated any place whatever as the place of trial on
treason charges alleged to have been committed in
Japan by a Portuguese national or any other person
residing within the geographical boundaries of
Japan.
vs. United States of America 57
(11) The court has no jurisdiction of the of-
fense alleged in the indictment because the United
States has no extraterritorial jurisdiction extending
over a Portuguese national or any other person re-
siding within the geographical boundaries of Japan.
(12) The indictment is duplicitous for contain-
ing an improper joinder of several separate and dis-
tinct purported offenses which have not been sepa-
rately stated.
(13) Neither the Attorney General nor the
United States had constitutional or statutory au-
thority or jurisdiction to seize the defendant at
her place of residence in Japan and remove her
therefrom to San Francisco; such authority and
jurisdiction being limited to the continental United
States and its possessions and in consequence, there
was no jurisdiction lodged in the grand jury to in-
dict the defendant and no jurisdiction exists in this
court either over her or over the purported of-
fense alleged in the indictment.
(14) Jurisdiction over the defendant is lodged
in the War Department or the military commis-
sions, tribunals or war courts set up by the U. S.
and its Allies in Japan, to the exclusion of the At-
torney General and this Court.
(15) Jurisdiction of the offense alleged in the
indictment is lodged in the War Department or the
military commissions, tribunals or war courts set
up by the U. S. and its Allies in Japan, to the ex-
chision of the Attorney General and this Court.
58 Iva Ikuko Toguri D^ Aquino
(16) Jurisdiction over the defendant, if any
exists, is lodged exclusively in the Government of
Portugal.
(17) Jurisdiction over the offense, if any exists,
is lodged exclusively in the Government of Por-
tugal.
(18) Jurisdiction over the defendant, if any ex-
ists, is lodged exclusively in the Government of
Japan.
(19) Jurisdiction over the offense, if any exists,
is lodged exclusively in the Government of Japan.
(20) The indictment fails to state facts suffi-
cient to constitute an offense against the United
States.
(21) The indictment fails to state facts suffi-
cient to constitute an offense against the United
States for the reason that the defendant is a na-
tional, citizen and domiciliary of Portugal whose
residence is in Japan.
(22) The indictment fails to state facts suffi-
cient to constitute an offense against the United
States for the reason that the defendant, by her
marriage, in Japan, to a national, citizen and domi-
ciliary of Portugal, resident in Japan, thereby lost
her prior nationality, citizenship, domicile and resi-
dence and acquired the Portuguese nationality, citi-
zenship and domicile of her husband and also his
residence in Japan.
vs. United States of America 59
(23) The indictment fails to state facts sufficient
to constitute an offense against the United States
for the reason that the defendant's marriage on
April 19, 1945, in Tokyo, Japan, to a national,
citizen and domiciliary of Portugal, residing in
Japan, constituted an act of expatriation and her
naturalization as a Portuguese whereby she lost
her prior nationality, citizenship, domicile and resi-
dence status and acquired and still has that of her
husband.
(24) The court has no jurisdiction over the per-
son of the defendant because she was seized ille-
gally at her residence in Japan and forcibly brought
to San Francisco by agents of the U. S. without the
authority and consent of the Allied Powers in
Japan having been obtained therefor.
(25) Tlie court has no jurisdiction of the offense
alleged in the indictment because the defendant was
seized illegally in Japan and forcibly brought to
San Francisco by agents of the U. S. without the
authority and consent of the Allied Powers in
Japan having been obtained therefor.
(26) The indictment fails to state facts suffi-
cient to constitute an offense against the United
States inasmuch as it alleges the employment of
defendant as a radio speaker, radio announcer, ra-
dio script writer and broadcaster of recorded music,
an occupation for w^hich only Japanese nationals
were eligible which, by operation of our law, con-
stitutes an act of expatriation whereby she lost her
60 Iva Ikuko Toguri D' Aquino
prior nationality and hence the court has neither
jurisdiction over the defendant nor of the cause.
(27) The cause is barred by the limitation
against prosecution, trial and punishment provi-
sions of Title 18 USCA, Section 582, which pro-
vides that ^*No person shall be prosecuted, tried,
or punished for any offense, not capital, except as
provided in section 1046 (section 584 of this title),
unless the indictment is found, or the information
is instituted, within three years next after such
offense shall have been committed," and by the pro-
visions of Title 18 USCA, Sec. 3282, which set up
a limitation against prosecution, trial and punish-
ment for offenses not capital unless the indictment
is found within three years next after such offense
shall have been committed.
(28) The cause is barred by the limitation of
prosecution, trial and punishment provisions of
Title 18, USCA, Section 581, which provides that
^^No person shall be prosecuted, tried, or punished
for treason or other capital offense, wilful murder
excepted, unless the indictment is found within
three years next after such treason or capital of-
fense is done or committed," said statute not being
repealed by the Act of Aug. 4, 1939, c. 419, sec. 1,
53 Stat. 1198, codified as Title 18 USCA, Sees. 581a
and 581b, and Sec. 3281, effective Sept. 1, 1948,
which authorize an indictment for any offense pun-
ishable by death to be found at any time with-
out regard to any statute of limitations but, clearly,
does not authorize either a prosecution, trial or pun-
ishment for treason committed three years before
vs. United States of America 61
indictment found, treason not necessarily being an
offense punishable by death, those new sections
merely authorizing a grand jury to return an in-
dictment in such a case.
(29) The court has no jurisdiction over the per-
son of the defendant inasmuch as it appears from
the indictment itself that the alleged offense was
committed outside the boundaries and jurisdiction
of the United States and its possessions, to wit, in
Japan by a resident of Japan.
(30) The court has no jurisdiction over the
cause inasmuch as it appears from the indictment
that the alleged offense was committed outside the
boundaries and jurisdiction of the United States
and its possessions, to wit, in Japan by a resident
of Japan.
(31) The indictment fails to state facts suffi-
cient to constitute an offense against the United
States because it nowhere therein alleges that any
acts, words or conduct of the defendant constituted
a completed crime of treason.
(32) The indictment fails to state facts sufficient
to constitute an offense against the United States
for failing to be a plain, concise and definite writ-
ten statement of the offense charged in that it is
vague, indefinite and uncertain in material respects
and, in consequence, fails to inform defendant of
the nature of the accusation against her sufficient
to enable her to present her defense thereto, in the
following particulars, to wit:
62 Iva Ikuko Toguri D' Aquino
(a) It does not allege any acts of treason by
adherence to the enemies through giving them aid
and comfort by specifying the particulars thereof
and, inasmuch as the special overt acts pleaded
in paragraph 4 of the indictment limit and control
the general accusation, pleaded in paragraphs 2 and
3 thereof, and these special overt acts are innocent
and ineffective on their face to sustain a charge of
treason it cannot be ascertained therefrom what
acts or conduct, if any, constitute the treason and
are complained of ;
(b) It is not alleged therein and it cannot be
ascertained therefrom what particular place or
places the word ^'elsewhere" on the last line of
paragraph 2 on line 13 of page 2 of the indictment,
the word ^^ elsewhere'' in paragraph 3(a) on line
25 of page 2 thereof and the word '^elsewhere'' in
paragraph 3(b) on line 29 of page 2 thereof re-
fers;
(c) It is not alleged therein and it cannot be as-
certained therefrom w^hat the word ^^ controlled" in
paragraph 3(a) on line 20 of page 2 of the indict-
ment signifies or means in what mode and manner
such control was exercised;
(d) It is not alleged therein and it cannot be
ascertained therefrom what were the precise or ap-
proximate time or times the defendant worked,
announced and wrote radio script, as alleged in
paragraph 3(a) on page 2 of the indictment or
what period of time such w^ork, announcing and
writing covered or the nature thereof;
I
vs. United States of America 63
(e) It is not alleged therein and it cannot be as-
certained therefrom what were the nature, character
and contents of the statements made by defend-
ant as a radio speaker, radio announcer and broad-
caster of recorded music alleged in paragraph 3(a)
on page 2 of the indictment ;
(f) It is not alleged therein and it cannot be
ascertained therefrom what was the character and
contents pf the radio script prepared or composed
by the defendant or of her talks and announce-
ments, and announcements of radio script, alleged
in paragraph 3(a) on page 2 of the indictment;
(g) It is not alleged therein and it cannot be
ascertained therefrom what was the nature and
contents of the announcements and introductions
made by the defendant of the musical recordings
and talks for broadcast by radio from Japan alleged
in paragraph 3(a) of the indictment;
(h) It is not alleged therein and it cannot be
ascertained therefrom what was or is the name of
the ^^ another person" mentioned in overt act No.
1 in paragraph 1 on page 3 of the indictment with
whom the defendant discussed the proposed partici-
i)ation of defendant in the radio broadcasting pro-
gram therein mentioned ;
(i) It neither alleges nor can it be ascertained
therefrom whether the employment of the defend-
ant as a radio operator, radio announcer, script
writer and broadcaster of recorded music alleged
in paragraph 3(a) of the indictment was or was
not in a capacity for which only Japanese nationals
or subjects were eligible;
64 Iva Ikuko Toguri D^ Aquino
(j) It neither alleges nor can it be ascertained
therefrom why or how the defendant whoes name
alone demonstrates her to be a foreigner married
to a foreign national and brought here from Ja-
pan could be a citizen of this country;
(k) It neither alleges nor can it be ascertained
therefrom why and under what authority the de-
fendant was first brought, shortly prior to the date
of the return of the indictment, into this federal
judicial district, as alleged in the concluding para-
graph of the indictment;
(1) It neither alleges, charges nor informs de-
fendant of the precise times when each of the acts
or conduct complained of took place;
(m) It neither alleges, charges nor informs de-
fendant of any precise or specific acts, words or
conduct of the defendant which constitute an of-
fense against the United States ;
(n) It doesn't charge that any offense was com-
mitted by the defendant within the United States,
its territories, possessions or jurisdiction;
(o) It neither alleges nor can it be ascertained
therefrom whether the acts or conduct therein men-
tioned actually had any treasonable effect or re-
sult upon any person or entity whatever;
(p) It doesn't allege and it cannot be ascer-
tained therefrom whether the acts therein alleged to
be overt acts, or any of them, had any treasonable
effect or result upon any person or entity whom-
soever ;
(q) It does not allege and it cannot be ascer-
vs. United States of America 65
tained therefrom when the overt act alleged in para-
graph 1 on page 3 thereof took place or the name
of the other person who participated in the discus-
sion therein mentioned or the words spoken, in sub-
stance or effect, nor the nature of the alleged dis-
cussion ;
(r) It does not allege and it cannot be ascer-
tained therefrom the time when the overt act al-
leged in paragraph 2 on page 3 thereof took place
or the names of the employees with whom the al-
leged discussion was had or the words spoken, in
substance or effect, or the nature of the alleged
discussion ;
(s) It does not allege and it cannot be ascer-
tained therefrom the time when the overt act alleged
in paragraph 3 on page 4 thereof took place or the
words spoken into the microphone, in substance or
effect, or the nature of the statements made;
(t) It does not allege and it cannot be ascer-
tained therefrom the time when the overt act alleged
in paragraph 4 on page 4 thereof took place or the
words spoken, in substance or effect, into the micro-
phone, or what was the precise reference made con-
cerning enemies of Japan ;
(u) It does not allege and it cannot be ascer-
tained therefrom the time when the overt act al-
leged in paragraph 5 on page 4 thereof took place
or what was the nature and contents, in substance
or effect, of the script prepared for subsequent
radio broadcast concerning the loss of ships or what
ships it refers to ;
66 Iva Ikuko Toguri B' Aquino
(v) It does not allege and it cannot be ascer-
tained therefrom the time when the overt act al-
leged in paragraph 6 on page 4 thereof took place
or what words were spoken, in substance or effect,
concerning the loss of ships or what ships it re-
fers to ;
(w) It does not allege and it cannot be ascer-
tained therefrom the time when the overt act al-
leged in paragraph 7 on page 4 thereof took place
or what was the nature and contents, in substance
or effect, of the radio script therein alleged to have
been prepared;
(x) It does not allege and it cannot be ascer-
tained therefrom the time when the overt act al-
leged in paragraph 8 on page 4 thereof took place
or what words, in substance or effect, were spoken
into the microphone or the names of the persons
w^ho engaged in the entertainment dialogue therein
mentioned or the substance and effect of the words
spoken by any of them in the entertainment dia-
logue.
This motion will be made and based upon the in-
dictment, notice of this motion, points and authori-
ties in support thereof, affidavit annexed to the mo-
tion to admit defendant to bail, and all papers,
records, documents and files herein and any evi-
dence which may be adduced in support of this
motion.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
vs. United States of America 67
(Copy)
Exhibit A
Warrant of Arrest
In the Name and Authority of
The Supreme Commander for the Allied Powers
To: The Provost Marshal, General Headquarters,
Far East Command, APO 500 :
1. You are directed to arrest, and deliver forth-
with to the Sugamo Prison, the following described
person :
a) Ikuko (Iva) Toguri D 'Aquino
b) Residing at 396 Ikijiri-machi, Setagaya-ku,
Tokyo, Japan
c) Age 32 years.
2. Upon complaint and sufficient information
made to me by the Department of Justice, United
States Government, as contained in Radio WCL
20431, from the Adjutant General, Department of
the Army, dated 25 August, 1948, the person de-
scribed in paragraph 1 above is suspected of hav-
ing committed the following crime:
Treasonable conduct against the United States
Government during World War II.
3. You will make known to the person arrested,
in her native language, the contents of this docu-
ment.
4. Authority to arrest under this warrant ex-
pires 30 days from date herein.
68 Iva Ikuko Toguri D' Aquino
Place: Tokyo, Japan.
Date: 26 August, 1948.
W. A. BBIDERLINDEN,
Brigadier General, United States Army, Assistant
Chief of Staff, G-1, General Headquarters, Par
East Command, APO 500.
(Copy)
Portuguese Consulate
Tokyo
To whom it may concern.
This is to certify that, Mr. Pilipe Jairus
D 'Aquino, born in Yokohama on 26th March, 1921,
married to Mrs. Ikuko Toguri d 'Aquino, is a Por-
tuguese national duly registered in this Consulate.
Portuguese Consulate in Tokyo, 4th November,
1948.
/s/ J. A. ABRANCHES PINTO,
J. A. ABRANCHES PINTO.
(Rubber Stamp) Consulado De Portugal Toquio.
(Rubber Stamp) Pagou ao cambio de 11.00 a
quantia de Y275.00 (Es. 25$00) segundo o numero
26° da tabela, ficando esta importancia lancada no
livro de receita sob o Numero 259.
Toquio, 4 de Novembro, 1948.
/s/ A. PINTO.
(Stamp) Republica Portuguesa 25|00 Servico
Consular.
(Rubber Stamp) Consulado De Portugal Toquio.
vs. United States of America 69
(Translation)
(Rubber Stamp) : Consulate of Portugal, Tokyo.
(Coat of Arms)
Consulate of Portugal
Tokyo
Service of the Portuguese Republic
Certificate of Consular Registry No. 190
The Consul of the Portuguese Republic in Tokyo
makes it known that Filipe Jairus d 'Aquino, marital
status, married, profession, newspaperman, son of
Jose Pilomeno d 'Aquino and Maria d 'Aquino, born
on the 26th day of March, 1921, a native of Yoko-
hama is a Portuguese citizen and is duly registered
in the Register of this Consulate under No. 5 of
Book No. 1 of inscriptions.
His last residence was Yokohama and he arrived
on (date in blank) at this consular district.
He resides in Tokyo, Setagaya-ku, 396 Ikejiri-
machi.
He proved his identity by previous consular cer-
tificate.
Consulate of Portugal in Tokyo, on June 30, 1947.
(Rubber Stamp) : Consulate of Portugal, Tokyo
(Photograph)
(Rubber Stamp) : Consulate of Portugal, Tokyo
70 Iva Ikuko Toguri D' Aquino
Characteristics: Height, Hair, Face, Beard, Eyes,
Nose, Mouth, Color — Blank.
Signature of the person being registered
/s/ FILIPE J. d'AQUINO,
/s/ J. A. ABRANCHES PINTO,
Consul.
(Rubber Stamp) : J. A. Abranches Pinto, Consul
This certificate is valid for the period of one year.
Paid at the rate of 0.80 the amount of Y9.60 in
accordance with Item 1 of the table of rates, this
amount being entered in the book of entries under
No. 1753.
Tokyo, June 30, 1947.
/s/ A. PINTO.
(Rubber Stamp) : Consulate of Portugal, Tokyo
(Stamp) : Portuguese Republic 12$00 Consular
Service.
(Rubber Stamp) : Consulate of Portugal, Tokyo
(On the back of the certificate: Rubber stamp
with Oriental characters)
(Translation)
(Rubber stamp) : Consulate of Portugal, Tokyo.
Consulate of Portugal
(Coat of Arms)
Tokyo
Service of the Portuguese Republic
Certificate of Consular Registry No. 159
The Consul of the Portuguese Republic in Tokyo
makes it known that Ikuko Toguri d 'Aquino (by
vs. United States of America 71
marriage to Filipe J. d'Aquino), marital status,
married, profession, newspaperwoman, daughter of
Jun Toguri and Fumi Toguri, born on July 4, 1918,
a native of Los Angeles, California is a Portuguese
citizen and is duly registered in the Register of this
Consulate under No. 5 of Book No. 1 of inscriptions.
Her last residence was in (blank) and she ar-
rived in (date blank) at this consular district.
She resides in Setagaya-ku, Ikejirimachi, No. 396.
She proved her identity by previous consular cer-
tificate.
Consulate of Portugual in Tokyo, on September
10, 1946.
(Rubber Stamp) : Consulate of Portugal, Tokyo
(Photograph)
(Rubber Stamp) : Consulate of Portugal, Tokyo
Characteristics : Height, Hair, Face, Beard, Eyes,
Nose, Mouth, Color — Blank.
Signature of the person being registered
/s/ IKUKO TOGURI d 'AQUINO,
/s/ J. A. ABRANCHES PINTO,
Consul.
This certificate is valid for the period of one year.
Paid at the rate of 0.20 the amount of Y2.40 in
accordance with Item No. 1 of the table of rates,
72 Iva Ikuko Toguri D^ Aquino
this amount being entered in the book of entries
under No. 1694.
Tokyo, September 10, 1946.
/s/ A. PINTO.
(Stamp) : Portuguese Eepublic 12$00 Consular
Service.
(Rubber Stamp) : Consulate of Portugal, Tokyo
(On the back of the certificate: Eubber stamp
with Oriental characters)
(Translation)
Consulate of Portugal
Tokyo
Affidavit
I, Joao do Amaral Abranches Pinto, Consul of
Portugal in Tokyo, upon request and because it is
the truth and to whom it may concern, do hereby
certify that, the books and documents belonging to
the files of the Consulate of Portugal in Yokohama
having been destroyed on the occasion of the earth-
quake and subsequent fire of September 1, in the
year 1923, it is not possible to furnish the record
of birth certificate of Pilipe Jairus d 'Aquino, mar-
ried, born in Yokohama on March 26, 1921, son of
Jose Filomeno d 'Aquino and Maria d 'Aquino.
vs. United States of America 73
Consulate of Portugal in Tokyo, November 4,
1948.
(Rubber Stamp) : Consulate of Portugal, Tokyo
The Consul,
/s/ J. A. ABRANCHES PINTO,
J. A. ABRANCHES PINTO,
(Rubber stamp) : Paid at the rate of 11.00 the
amount of Y275.00 (Escudos 25$00) in accordance
with item 26 of the table of rates, this amount being
entered in the book of entries imder No. 257.
Tokyo, November 4, 1948.
/s/ A. PINTO.
(Stamp) : Portuguese Republic 25$00 Consular
Service
(Rubber Stamp) : Consulate of Portugal, Tokyo
(Translation)
Consulate of Portugal
Tokyo
(Consular Seal over wax)
/s/ A. PINTO.
I, Joao do Amaral Abranches Pinto, Consul of
Portugal in Tokyo, Japan:
Do hereby <3ertify that in the book of records and
transcriptions of marriages of this Consulate of
Portugal in Tokyo, on the back of page seven, page
eight and back, there appears the record of marriage
as follows:
74 Iva Ikuko Toguri D' Aquino
Record No. 5 — At the request of Filipe Jairus
Testus d 'Aquino, I, Joao do Amaral Abranches
Pinto, Consul of Portugal in Tokyo, transcribe here-
under the following record of marriage, performed
in conformity with the canonic laws of the Catholic
Chapel annexed to Sophia University of Tokyo, in
Kojimachi-ku, Tokyo, on the nineteenth day of the
month of April, in the year nineteen hundred and
forty-five, before the Reverend Father J. B. Kraus,
S.J.
On the nineteenth day of the month of April in
the year nineteen hundred and forty-five, in the
chapel annexed to the Catholic Sophia University
of Tokyo, in Kojimachi-ku, Tokyo, before the Rev-
erend Father J. B. Kraus, S.J., the following per-
formed their marriage : the bridegroom Filipe Jairus
Testus d 'Aquino, newspaperman, residing in this
capital, single, a native of Yokohama, Japan, born
on the twenty-sixth day of March, in the year nine-
teen hundred and twenty-one, legitimate son of Jose
Filomeno d 'Aquino and Maria d 'Aquino, and the
bride : Ikuko Toguri, residing in this capital, single,
North-American citizen, a native of Los Angeles,
California, United States of North America, born
on the fourth day of July, in the year nineteen hun-
dred and eighteen, legitimate daughter of Jun
Toguri and Fumi Toguri, her name becoming Ikuko
Toguri d 'Aquino.
And for the records, I transcribe this marriage
record in accordance with the terms of Article 36
of Decree Number 29970, published in the Govern-
vs. United States of America 75
merit Diary Number 240 of October 13, of the year
1939, and in the Portuguese Civil Code, on presen-
tation of the proofs, which are annexed to this rec-
ord at the request of the bridegroom. Consulate of
Portugal in Tokyo, on the eighteenth day of the
Month of June, in the year nineteen hiuidred and
forty-five. Signature: J. A. Abranches Pinto, Con-
sul. There follows the receipt of consular emolu-
ments. Paid at the rate of exchange of 0.20 the
amount of Forty Escudos (y 8.00) in accordance
with item 20 of the table of rates, this amount being
entered into the book of entries under No. 1620.
Tokyo, June 18, 1945. Signed, A. Pinto. Fiscal
stamp of the Consular Service duly authenticated
by a rubber stamp reading:
Consulate of Portugal, Tokyo.
Nothing else appearing in the record that I am
consulting, I issued these presents, to which is affixed
a stamp of this Consulate, signed by me on the
fourth day of the month of November, in the year
nineteen hundred and forty-eight.
Consulate of Portugal in Tokyo, on November
4, 1948.
/s/ J. A. ABRANCHES PINTO,
J. A. ABRANCHES PINTO,
Consul.
(Rubber Stamp) : Consulate of Portugal, Tokyo
(Stamp) : Portuguese Republic, 40$00, Consular
Service)
(Rubber stamp) : Consulate of Portugal, Tokyo
76 Iva Ikuko Toguri B 'Aquino
(Rubber stamp) : Paid at the rate of 11.00 the
amount of Y440.00 (Escudos 40$00) in accordance
with item 25 of the table of rates, this amount being
entered in the book of entries under number 258.
Tokyo, November 4, 1948.
/s/ A. PINTO.
AFFIDAVIT
State of California,
City and County of San Francisco — ss.
Manuel Reis, being by me first duly sworn, de-
poses and says: That he is a resident of the City
and County of San Francisco, State of California;
that he understands, reads and writes both the Por-
tuguese and the English languages, and is able to
translate writings from one into the other of said
languages; that he has translated the following
documents, to wit:
(a) Consular certificate of Filipe Jairus
d' Aquino;
(b) Consular certificate of Ikuko Toguri
d' Aquino;
(c) Affidavit signed by the Consul of Portu-
gal in Tokyo;
(d) Marriage certificate of Filipe Jairus Testus
d'Aquino and Ikuko Toguri;
which documents are written in Portuguese; and
that the annexed is a true, complete and correct
vs. United States of America 77
translation into English of the said foregoing at-
tached documents in Portuguese, to the best of his
knowledge and ability.
/s/ MANUEL REIS.
Subscribed and sworn to before me, this 9 of
December, A.D. 1948.
[Seal] : /s/ H. M. ELISSAMBURU,
Notary Public.
My Commission expires Nov. 21, 1951.
[Note]: Translations only. Documents in Por-
tuguese not printed.
[Endorsed] : Filed Nov. 15, 1948.
[Title of District Court and Cause.]
NOTICE OF MOTION FOR DISCOVERY
AND INSPECTION
To Hon. Frank J. Hennessy, U. S. Attorney, At-
torney for Plaintiff:
You will please take notice that on Monday,
November , 1948, at the hour of 10 o'clock a.m.
of said day, or so soon thereafter as counsel can be
heard, the defendant will move the above-entitled
Court for an order requiring the plaintiff to permit
defendant to inspect and examine the statements,
documents, records and things specified in the within
Motion for Discovery and Inspection.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
78 Iva Ikuko Toguri D' Aquino
[Title of District Court and Cause.]
MOTION FOE DISCOVERY
AND INSPECTION
The defendant Iva Ikuko Toguri D 'Aquino, by
her attorney, moves the Court for an order requir-
ing the United States of America, plaintiff, or the
attorney for plaintiff, to permit defendant to inspect
and copy or photograph the following designated
papers, documents or tangible objects, obtained from
others by seizure or process, which said papers,
documents or tangible objects, hereinafter specified,
are material to the preparation of defendant's de-
fense, said discovery and inspection to be at a time,
place and in such manner and under such terms and
conditions as are just, to- wit:
(1) The statement, purporting to be made up, in
part, of an oral statement of the defendant obtained
from her and taken down in pencil by Sergeant
Page (Paige *?) of the Counter Intelligence Corps
of the U. S. Eighth Army in Japan, acting under
the orders of Brigadier General Richard Thorpe
and Lt. Col. Turner of the said Corps and Army at
the Yokohama New Grand Hotel, Yokohama, Japan,
on or about September 6, 1945, which purports to
set forth a narration of defendant's residence, em-
ployment, marriage to Philip (Felipe) J. D 'Aquino,
a national, citizen and domiciliary of Portugal re-
siding in Japan, and her activities in Japan from
vs. United States of America 79
July, 1941, to the date thereof, the defendant being
at said time and place held under restraint by said
Army authorities.
(2) The picture or pictures of the defendant and
General Eichelberger, U.S.A., taken at the order of
said General at the Yokohama New Grand Hotel,
Yokohama, Japan, on or about September 6, 1945.
(3) The motion picture film and sound record-
ing (sound film) synchronized therewith made of the
defendants at Radio Tokyo, Tokyo, Japan, on or
about October 1, 1945, on orders of the Signal
Corps of the U. S. Eighth Army in Japan, and the
radio script, consisting of several pages, then and
there prepared for the same by a Second Lieutenant,
U. S. Army, whose name was Cadeson or Kadeson
or a name similarly pronounced, which defendant,
by said person, was ordered to read into said sound
film and thereafter at said time and place was or-
dered signed by defendant in her maiden name Iva
I. Toguri and also, in quotes, ^^ Tokyo Rose," to-
gether with several other pages of radio script then
and there obtained by said person from the de-
fendant.
(4) The typewritten, signed and witnessed state-
ment, purporting to be made up, in part, of an oral
statement obtained from the defendant and drawn
up from pencil or ink notes made by a Mr. Hetrick
who was in a U. S. Army uniform and either a
member of the Counter Intelligence Corps of the
U. S. Eighth Army in Japan, or attached thereto.
80 Iva Ikuko Toguri D' Aquino
or a member of the U. S. Department of Justice or
a member of the U. S. Federal Bureau of Investiga-
tion, at Sugamo Prison in Tokyo, Japan, on or
about December, 1945, the defendant then and there
being held under restraint and imprisoned by U. S.
authority which restraint and imprisonment com-
menced on October 17, 1945, and continued until
October 25, 1946, when defendant was released there-
from, together with the said notes, the said state-
ment purporting to set forth a narration of defend-
ant's residence, marriage to Philip (Felipe) J.
D 'Aquino, a national, citizen and domiciliary of
Portugal residing in Japan, and her employment
and activities in Japan from July 1941, to the date
thereof.
(5) The typewritten, signed and witnessed state-
ment, purporting to be made up, in part, of an oral
statement obtained from the defendant by and
drawn up by Fred Tillman, special agent of the
U. S. Federal Bureau of Investigation, from his
notes, he then being in U. S. Army uniform and
attached to the Counter Intelligence Corps or the
U. S. Eighth Army in Japan, and thereafter signed
by defendant at Sugamo Prison, Tokyo, Japan, on
or about April, 1946, together with the original notes
thereof, the defendant being held in restraint and
imprisoned at said Sugamo Prison at said times by
the United States, said statement purporting to
narrate the history of defendant's residence, mar-
riage and employment in Japan from July, 1941, to
the date thereof.
vs. United States of America 81
(6) The photostat copy of notes purporting to
be made by Clark Lee and purporting to be or to
relate to an interview of the defendant by Harry
Brundidge and Clark Lee, newspaper correspond-
ents attached to the U. S. Eighth Army in Tokyo,
Japan, purporting to have taken place on or about
September 2, 1945, at the Imperial Hotel in Tokyo,
Japan, said photostat copy of notes being initialed
^^ID'A" on each page thereof and signed in defend-
ant's name on or about March 26, 1948, at the build-
ing of General Headquarters of the United States
Army, Tokyo^ Japan, to which defendant forcibly
was brought by agents of the United States from
her home and sick bed in Tokyo, Japan, the said
Harry Brundidge and one, John Hogan, a special
assistant to the U. S. Attorney General, being pres-
ent at said time and place, said photostat copy of
notes purporting to relate to the history and activi-
ties of defendant in Japan from 1941 to the date
thereof.
(7) The package of typewriter sized foolscap
paper, consisting of a series or number of original
and perhaps, a number of carbon copies, of type-
written pages or script, approximately one-half inch
thick, obtained from the defendant by agents of
the Counter Intelligence Corps of the U. S. Eighth
Army in Japan, namely. Sergeant Page (Paige"?)
for Lt. Col. Turner at Yokohama, Japan, on or
about September 15, 1945, said pa^^kage of papers
thereafter being in the possession of Fred Tillman,
82 Iva Ikuko Toguri D 'Aquino
special agent of the U. S. Federal Bureau of Inves-
tigation, who, on or about April, 1946, at Sugamo
Prison, Tokyo, Japan, obtained defendant's initial-
ing of each page thereof while she was held in
restraint and duress at said prison by United States
authority, said papers in said package of papers
being in the nature of radio script purporting to
have been prepared for broadcast from Eadio
Tokyo.
(8) Any and all phonographic tape, wire, elec-
trical, magnetic, sound or other types of records,
recordings or transcriptions made, manufactured,
received or intercepted, and in the possession of or
available to plaintiff, of any and all of the Zero
Hour programs of Radio Tokyo or radio station
JOAK on which the prosecution asserts or will
assert at any trial herein that the defendant or per-
son designated or known or referred to as ^'Orphan
Ann,'' '^Orphan Annie" or ^^ Tokyo Rose" spoke,
talked, recorded, announced or broadcasted any
statement, matter or thing, together with any and
all of the musical records or pieces or recordings
thereof which the prosecution asserts or will assert
at any trial herein that such person played, an-
nounced or broadcast thereon, covering the period
of time from or about November 1, 1943, to and
including August 15, 1945.
(9) Any and all recordings of the defendant's
voice made on or about January 6, 1946, at Radio
Tokyo, in Tokyo, Japan, obtained from the defend-
ant by order of the Counter Intelligence Corps of
vs. United States of America 83
the U. S. Eighth Army in Japan, which the prose-
cution asserts or will assert at any trial herein to be
a recording of defendant's voice.
(10) Any and all recordings of the defendant's
voice made on or about February, 1948, at Radio
Tokyo, in Tokyo, Japan, obtained from the defend-
ant by order of the Counter Intelligence Corps of
the U. S. Eighth Army in Japan, which the prose-
cution asserts or will assert at any trial herein to
be a recording of defendant's voice.
(11) Several pages of handwritten script on
typewriter sized foolscap paper, the contents pur-
porting to be radio script, obtained from the defend-
ant at Yokohama Prison, Yokohama, Japan, by Col.
Robert Hardy, U.S.A., officer in charge of that
prison, on or about October 17, 1945, which purports
to be radio script prepared for broadcast.
(12) Any and all other papers, documents, rec-
ords and things the United States or its agents
obtained, if any, from the defendant, her husband
or her home and residence situated at No. 396 Ikejiri
Machi, Setagaya Ku, Tokyo, Japan during the en-
forced absence therefrom of the defendant, which
has or may have any bearing on any issues involved
in this cause whether or not the plaintiff or its
agents intend to use or offer any such evidence at
any trial of the issues herein.
Inspection of each and all of the above-mentioned
statements, do<?uments and things, obtained from de-
fendant as above stated, are or may be material to
84 Iva Ikuko Toguri D' Aquino
the preparation of defendant's defense to the indict-
ment herein and are in the possession of or avail-
able to the plaintiff, or its agents, representatives
and attorney.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
State of California,
City and County of San Francisco — ss.
Wayne M. Collins being first duly sworn deposes
and says: that he is attorney of record for Iva
Ikuko Toguri D 'Aquino, defendant herein; that he
has read the foregoing Motion for Discovery and
Inspection and knows the contents thereof; that as
such attorney he has investigated the facts concern-
ing each of the twelve statements, documents and
records mentioned therein; that he verily believes
the facts to be true which therein are recited or
narrated in said motion; that each of the items
therein sought to be inspected, examined and copied
or photographed are, for the reasons therein stated,
material to the preparation of defendant's defense
to the charges brought against her in the indictment
in said cause and he verily believes that defendant's
request and motion for discovery and inspection
thereof is reasonable.
/s/ WAYNE M. COLLINS.
Subscribed and sworn to before me this 15th
day of November, 1948.
[Seal] /s/ JANE M. DOUGHERTY,
Notary Public in and for the City and County of
San Francisco, State of California.
vs. United States of America 85
Points and Authorities in Support of Motion
for Discovery and Inspection
The' motion for discovery and inspection of the
statements, documents and things set forth in said
motion is authorized specifically by the new rule of
criminal procedure, Rule 16 of the Rules of Crimi-
nal Procedure for the District Courts of the United
States in 1946.
See also, U.S. v. B. Goedde & Co., 40 Fed. Sup.
523, 534, decided in 1941 and so authorizing before
the new rule became effective.
Respectfully submitted,
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Receipt of copy a^knowleged.
[Endorsed] : Filed November 15, 1948.
[Title of District Court and Cause.]
NOTICE OF MOTION TO DISMISS INDICT-
MENT ON DEFENSES AND OBJECTIONS
CAPABLE OF DETERMINATION WITH-
OUT TRIAL OF GENERAL ISSUE
To Hon. Frank J. Hennessy, U. S. Attorney, At-
torney for Plaintiff :
You will please take notice that on Monday, No-
vember , 1948, at the hour of 10 o'clock a.m. of
said day, or so soon thereafter as counsel can be
86 Iva Ikuko Toguri D' Aquino
heard, the defendant will move the above-entitled
Court to dismiss the indictment herein upon the
grounds and for the reasons set forth in the within
Motion to Dismiss Indictment on Defenses and
Objections Capable of Determination Without Trial
of General Issue.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Title of District Court and Cause.]
MOTION TO DISMISS INDICTMENT ON DE-
FENSES AND OBJECTIONS CAPABLE
OF DETERMINATION WITHOUT TRIAL
OF GENERAL ISSUE UNDER RULE 12,
RULES OF CRIMINAL PROCEDURE
The defendant moves the court to quash and dis-
miss the indictment upon a determination of each
and all of the following defenses and objections to
the indictment which are capable of determination
without a trial of the general issue, upon each and
all of the following grounds and for the following
reasons, to-wit:
(1) The cause is barred by the provisions of the
5th Amendment by reason of the prior acquittal of
the defendant by the United States on or about
September 6, 1945, on the same charges contained
in the indictment herein which were preferred
against her by the United States, in Japan, on or
about September 5, 1945.
vs. United States of America 87
(2) The cause is barred by the provisions of the
5th Amendment by reason of the prior acquittal of
the defendant by the United States on or about
October 25, 1946, on the same charges contained in
the indictment herein which were preferred against
her by the United States, in Japan, on or about
October 17, 1945.
(3) The cause is barred by the provisions of
the 5th Amendment against subjecting the defend-
ant to double jeopardy of life or limb for the same
offense by reason of the fact that the defendant
previous to the time this indictment was returned
herein, to wit, on September 5, 1945, was put in
jeopardy by the United States for the same offense
alleged in the indictment herein.
(4) The cause is barred by the provisions of the
5th Amendment against subjecting the defendant to
double jeopardy of life or limb for the same offense
by reason of the fact that the defendant previous
to the time this indictment was returned herein, to
wit, on October 17, 1945, and thereafter unto Oc-
tober 25, 1946, was put in jeopardy by the United
States for the same offense alleged in the indictment
herein.
(5) The cause is barred by the provisions of the
5th Amendment by reason of the prior conviction
of the defendant, without trial, on or about October
17, 1945, by the United States on the same charges
contained in the indictment herein which were pre-
ferred against her by the United States, in Japan,
88 Iva Ikuko Togiiri B' Aquino
on or about said October 17, 1945, followed by her
sentence, commitment to and imprisonment, by the
United States, in the Yokohama Prison, Yokohama,
Japan, on said date and transfer therefrom on
November 16, 1945, to the Sugamo Prison, Tokyo,
Japan, by the United States, her jailer, and her
final release and discharge therefrom by the United
States on October 25, 1946.
(6) The cause is barred by reason of the fact
that the issues of fact and of law involved herein
are res judicata because the defendant heretofore,
on or about September 6, 1945, was acquitted by the
United States in Japan of the identical charges
herein which there were brought against her on
September 5, 1945, by the United States.
(7) The cause is barred by reason of the fact
that the issues of fa^^t and of law involved herein
are res judicata because the defendant heretofore,
on or about October 25, 1946, was acquitted by the
United States in Japan of the identical charges
herein which there were brought against her on
October 17, 1945, by the United States.
(8) The cause is barred by reason of the fact
that the issues of fact and of law involved herein
are res judicata because the defendant heretofore,
on or about September 5, 1945, was convicted by the
United States in Japan of the identical charges
herein which there were brought against her on
that date by the United States.
vs. United States of America 89
(9) The cause is barred by reason of the fact
that the issues of fact and of law involved herein
are res judicata because the defendant theretofore,
on or about October 25, 1946, was convicted by the
United States in Japan of the identical charges
herein which there were brought against her on
October 17, 1945, by the United States which there-
upon imprisoned her thereon for one year, one week
and one day until October 25, 1946, in Japan and
thereupon di&charged her from imprisonment.
(10) The cause is barred by the fact that the
United States, in violation of the guaranty of the
6th Amendment, safeguarded by the due process
clause of the 5th Amendment, long has deprived the
defendant of a ^^ speedy," public, fair and impartial
trial, of being informed of the nature and cause of
any accusation against her, of being confronted with
any witnesses against her, of having compulsory or
any process for obtaining witnesses in her favor and
of the assistance of counsel for her defense by rea-
son of the facts that the defendant, on or about
October 17, 1945, was accused and charged by the
United States, in Japan, of the commission of the
same offense and charges contained in the indict-
ment herein and, thereafter, on said October 17,
1945, thereon was sentenced and committed to and
imprisoned by the United States in the Yokohama
Prison, Yokohama, Japan, from that date until
November 16, 1945, when she was transferred to tlie
Sugamo Prison, Tokyo, Japan, where she continu-
90 Iva Ikuko Togiiri D' Aquino
ousl}" was imprisoned by her jailor, the United
States, until October 25, 1946, when she was released
and discharged from custody by the United States
and, thereafter, on August 26, 1948, the defendant
again was re-arrested at her home in Tokyo, Japan,
by the United States and ever since then continu-
ously has been imprisoned by the United States and,
on September 25, 1948, forcibly was brought to San
Francisco, in custody, from Japan by the United
States and ever since then has been and now is im-
prisoned by the United States, all of which has
operated to deprive and has deprived defendant
of said constitutional guarantees and has operated
to deprive and has deprived and caused this court
to lose jurisdiction over the cause and over the
person of the defendant.
(11) The cause is barred by virtue of the fact
that the defendant is not a citizen or subject of the
United States but is and ever since on or about
April 19, 1945, has been a national, citizen and
domiciliary of Portugal and lawfully a permanent
resident of Japan by virtue of her marriage to
Felipe (Philip) J. D 'Aquino, an adult national,
citizen and domiciliary of Portugal who then and
ever since then has been and now is a lawful and
permanent resident of Tokyo, Japan, and, in con-
sequence, the court has neither lawful jurisdiction
over the person of the defendant nor over the cause.
(12) The cause is barred by the fact that, if the
defendant at any time was a national and citizen
of the United States, her employment, as alleged in
vs. United States of America 91
the indictment, from on or about November 1, 1943,
to and including August 13, 1943, by the Broad-
casting Corporation of Japan, therein alleged to
have been a company controlled by the Imperial
Japanese Government, in the position therein re-
ferred to, in and of itself, constituted an act of
expatriation and operated to cause her to lose her
said United States nationality and citizenship and
to become an expatriate in Japan and, in conse-
quence, a person outside the lawful jurisdiction of
the United States and of this court and not subject
to the jurisdiction of the United States and of this
court.
(13) Neither this judicial district nor this court
is the proper venue for the return of the indictment
herein.
(14) Neither this judicial district nor this court
is the proper venue for the trial of the cause.
(15) The court has no jurisdiction over the per-
son of the defendant and could not acquire any
such jurisdiction by virtue of the fact that she is a
national and citizen of Portugal, domiciled in Por-
tugal, and a lawful and permanent resident of
Tokyo, Japan, who was kidnapped unlawfully in
Japan by the United States and forcibly brought to
San Francisco by the United States.
(16) The court has no jurisdiction over the cause
and could not acquire any such jurisdiction by virtue
of the fact that she is a national and citizen of Por-
92 Iva Ikuko Toguri D' Aquino
tugal, domiciled in Portugal, and a lawful and per-
manent resident of Tokyo, Japan, who unlawfully
was seized in Japan by the United States and
forcibly brought to San Francisco by the United
States.
(17) The jurisdiction over the person of the
defendant is lodged in the Government of Portugal
to the exclusion of the United States and this court.
(18) The jurisdiction over the cause, if any
exists, is lodged in the Government of Portugal to
the exclusion of the United States and this court.
(19) Jurisdiction over the defendant is lodged
in the War Department or the military commissions,
tribunals or war courts set up by the U. S. and its
Allies in Japan, to the exclusion of the Attorney
General and this court.
(20) Jurisdiction of the offense alleged in the
indictment is lodged in the War Department or the
military commissions, tribunals or war courts set up
by the United States and its Allies in Japan, to the
exclusion of the Attorney General and this court.
(21) The jurisdiction over the person of the de-
fendant is lodged in the Government of Japan to
the exclusion of the United States and this court.
(22) The jurisdiction over the cause, if any
exists, is lodged in the Government of Japan to the
exclusion of the United States and this court.
(23) Neither the United States nor this court
has jurisdiction over the person of the defendant
vs. United States of America 93
for lack of consent to such jurisdiction on the part
of the Government of Portugal, the Government of
Japan, the Allied Powers in Japan and the United
States Military Government in Japan, and on the
part of each of them. ,
(24) Neither the United States nor this court
has jurisdiction over the cause for lack of the con-
sent to such jurisdiction of the Government of Por-
tugal, the Government of Japan, the Allied Powers
in Japan and the United States Military Govern-
ment in Japan, and of the consent of each of them.
(25) The cause is barred by the limitation
against prosecution, trial and punishment provisions
of Title 18, use A, Section 582, providing that ^'No
person shall be prosecuted, tried, or punished for
any offense, not capital, except as provided in sec-
tion 1046 (section 584 of this title), unless the in-
dictment is found, or the information is instituted,
within three years next after such offense shall have
been committed," and by the provisions of Title 18
USCA, Sec. 3282, which set up a limitation against
prosecution, trial and punishment for offenses not
capital unless the indi-ctment is found within three
years next after such offense shall have been com-
mitted.
(26) The cause is barred by the limitation of
prosecution, trial and punishment provisions of Title
18 USCA, Section 581, which provides that ^'No
person shall be prosecuted, tried, or punished for
treason or other capital offense, wilful murder ex-
94 Iva Ikuko Toguri D' Aquino
cepted, unless the indictment is found within three
years next after such treason or capital offense is
done or committed," said statute not being repealed
by the Act of Aug. 4, 1939, c. 419, se<3. 1, 53 Stat.
1198, codified as Title 18 USCA, sees. 581a and 581b
and Sec. 3281, effective Sept. 1, 1948, which au-
thorize an indictment for any offense punishable by
death to be found at any time without regard to
any statute of limitations but, clearly does not au-
thorize either a prosecution, trial or punishment for
treason committed three years before indictment
found, treason not necessarily being an offense pun-
ishable by death, those new sections merely author-
izing a grand jury to return an indictment in such
a case.
This motion will be made upon the indi<3tment,
this motion, notice thereof, affidavits, documents,
records and papers in support thereof to be sub-
mitted thereon, points and authorities, motion to
dismiss the indictment filed herein concurrently
herewith, and all other pleadings, papers and files
herein and upon any evidence that may be adduced
in support of this motion at the time the same is
heard.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Endorsed] : Piled November 15, 1948.
vs. United States of America 95
Affidavit in Support of Motions to Dismiss
State of California,
Northern District of California,
City and County of San Francisco — ss.
Jun Togiiri, being first duly sworn, deposes and
says :
My name is Jun Toguri. I am a widower. I am
66 years of age. I am a grocer by occupation. My
place of business is situated at 1128 North Clark
Street, Chicago, 111. I reside at 1012 North Clark
Street, Chicago, 111., which has been my home ever
since September, 1944.
I was born at Yamanashi Ken, in Japan, on
March 25, 1882, of full Japanese blood, and ever
since then I have been and now am a national and
citizen of Japan. I graduated from the Jikyo Kan
school in Yamanashi Ken, Japan.
On or about June 8, 1907, I was lawfully united
in marriage, at Yokohama, Japan, to Fumi limuro,
a full blooded Japanese who was born in Tokyo,
Japan, on or about February 14, 1888, and who,
continuously until her death at the Tulare Assembly
Center, Tulare County, California, on May 24, 1.942,
was a national and citizen of Japan.
I was lawfully admitted to the United States for
permanent residence on or about September, 1899,
at Seattle, Washington. Fumi Toguri, nee limuro,
my said wife, now deceased, w^as lawfully admitted
to the United States for permanent residence on
or about November 1, 1913, at San Francisco, Cali-
fornia.
96 Iva Ikuko Togitri D* Aquino
Iva Ikuko Toguri d 'Aquino, the defendant in
criminal proceeding No. 31712 R now pending in
the United States District Court for the Northern
District of California, Southern Division, which was
filed therein on October 8, 1948, is my natural
daughter and the natural daughter of my said wife,
Fumi Toguri, nee limuro, deceased, born during
wedlock.
My daughter, Iva Ikuko Toguri d 'Aquino, ever
since July 25, 1941, has been and now is a resident
of Tokyo, Japan, albeit since on or about Septem-
ber 3, 1948, she has not physically been present in
Japan by virtue of her removal therefrom by agents
of the United States to San Francisco, California.
On April 19, 1945, my said daughter, Iva Ikuko
Toguri, then and now an adult female, lawfully was
united in marriage to one, Felipe J. d 'Aquino, an
adult male, at the Sofia University Chapel in Tokyo,
Japan, according to the rites of the Roman Catholic
Church and faith of which Church and faith each
of them then was and now is a member. That said
marriage then was and ever since then has been
and now is lawful according to the law of Portugal
and of Japan and, as such, is recognized as being
lawful by the law of the United States. Ever since
her said marriage said Iva Ikuko Toguri d 'Aquino,
my daughter, has resided continuously with her said
husband at their home and residence situated at
No. 396 Ikejiri Machi, Setagaya-Ku, Tokyo, Japan.
The said Felipe J. d 'Aquino, who is my son-in-
law by virtue of his said marriage to my said daugh-
vs. United States of America 97
ter, was born at Yokohama, Japan, on or about
March 26, 1919. He is a linotype operator and proof
reader by occupation.
The father of said Felipe J. d 'Aquino is Jose F.
d 'Aquino who resides in Atsugi, Kanagawa Ken,
Japan, and is a person of half Portuguese blood
derived from his father, the paternal grandfather
of said Felipe J. d 'Aquino, who was a person of
full Portuguese blood and a national, citizen and
domiciliary of Portugal, and said Jose F. d 'Aquino
ever since his birth has been and now is a national,
citizen and domiciliary of Portugal and is a resident
of Japan. The mother of said Felipe J. d 'Aquino
is Maria d 'Aquino who resides with her husband,
the said Jose F. d 'Aquino, at Atsugi, Kanagawa
Ken, Japan, and is a person of full Japanese blood,
maternally and paternally, and is a national, citizen
and domiciliary of Portugal, by reason of her said
marriage to her said Portuguese husband. The said
Jose F. d 'Aquino and the said Maria d 'Aquino, his
wife, ever since the birth of their natural son, the
said Felipe J. d 'Aquino, have been and now are
lawful residents of Japan. The said Felipe J.
d 'Aquino is i/4th Portuguese blood and %ths Japa-
nese blood.
The said Felipe J. d 'Aquino, according to the
law of Portugal, as also the law of Japan, ever since
his said birth has been and now is a national, citi-
zen and domiciliary of Portugal, derived from his
said father and mother, to the exclusion of any
! claim of any government, other than Portugal, to
98 Iva Ikuko Toguri V Aquino
his allegiance; and, ever since his said birth he has
been and now is a lawful resident of Japan, pres-
ently residing therein at No. 396 Ikejiri Machi,
Setagaya-Ku, Tokyo, Japan, the home and residence
of said Felipe J. d 'Aquino and said Iva Ikuko
Toguri d 'Aquino, his wife. The said exclusive Por-
tuguese nationality, citizenship and domicile of said
Felipe J. d 'Aquino ever since his birth continuously
has been and now is lawful and valid according to
the law of Portugal and of Japan, as also according
to the law of the United States.
/s/ JUN TOGURI,
Affiant.
Subscribed and sworn to before me this 15th
day of November, 1948.
[Seal] /s/ JANE M. DOUGHERTY,
Notary Public in and for the City and County of
San Francisco, State of California.
Receipt of copy acknowledged.
[Endorsed] : Filed November 15, 1948.
[Title of District Court and Cause.]
NOTICE OF MOTION FOR
BILL OF PARTICULARS
To Hon. Frank J. Hennessy, U. S. Attorney, At-
torney for Plaintiff :
You will please take notice that on Monday, No-
vember , 1948, at the hour of 10 o'clock a.m. of
vs. United States of America 99
said day, or so soon thereafter as counsel can be
heard, the defendant will move the above-entitled
Court for an order requiring the plaintiff to furnish
defendant with the Bill of Particulars as set forth
in the within Motion for Bill of Particulars.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Title of District Court and Cause.]
MOTION FOR BILL OF PARTICULARS
Iva Ikuko Toguri D 'Aquino, defendant, by her
attorney, moves the Court for an order requiring
the United States of America, plaintiff, to file and
furnish her with a Bill of Particulars, acts, facts
and things as to the following matters which are
so vague, indefinite, uncertain, ambiguous, evasive,
equivocal and contradictory, and improperly and
generally alleged, or attempted to be alleged, in the
indictment returned against her in this cause, or
omitted therefrom, in the following matters and
respects and for the following reasons, to-wit:
1. A statement of the particular place or places
to which the word '^elsewhere" on the last line of
paragraph 2 on line 13 of page 2 of the indictment
refers.
2. A statement of the particular place or places
to which the word ''elsewhere" in paragraph 3(a)
on line 25 of page 2 of the indictment refers.
100 Iva Ikuko Toguri B' Aquino
3. A statement of the particular place or places
to which the word ^^ elsewhere" in paragraph 3(b)
on line 29 of page 2 of the indictment refers.
The defendant states that the words *' elsewhere"
in each of the three instances above referred to is
a word of broad and general meaning and is so un-
specific and uncertain as to be susceptible of differ-
ent interpretations and, consequently, in nowise
advises or informs her as to its use, meaning, sig-
nificance and relevancy to the purported cause of
action.
4. A statement of the respect or respects in
which the Broadcasting Corporation of Japan w^as
controlled by the Imperial Japanese Government, as
alleged in paragraph 3(a) on page 2 of the indict-
ment, or the meaning of the word '^controlled" as
therein used.
The defendant states that the word '^ controlled"
in the phrase ''the Broadcasting Corporation of
Japan, a company controlled by the Imperial Japa-
nese Government," in paragraph 3(a) on page 2
of the indictment, is a word of broad and general
meaning and is so unspecific and uncertain as to be
susceptible of different meanings and interpreta-
tions and, consequently, in nowise advises or informs
her of the nature and facts of said control or of its
relevancy to the purported cause of action.
5. A statement whether or not the alleged ad-
herence of the defendant and the giving of aid and
vs. United States of Aynerica 101
comfort to the enemies specified generally in para-
graph 3 on pages 2 and 3 of the indictment actually
had the effect or result of aiding and comforting the
enemies of the United States and, if so, in what
respect or respects.
The allegations of adherence to the enemies by
giving them aid and comfort in paragraph 3(a) on
page 2 of the indictment are couched in general
language and are so broad and of such a general
meaning and significance and are so unspecific and
uncertain as to the particular facts, nature and char-
acter thereof as to leave the defendant completely
in the dark as to the facts, conduct or things con-
stituting the alleged adherence, aid and comfort;
Further, nowhere therein or elsewhere in the indict-
ment is there any allegation whatever that alleged
adherence, aid and comfort of the defendant to the
enemies, so generally pleaded in the indictment,
actually had the effect or result of destroying con-
fidence in the war effort of the United States and
its Allies, and of undermining and lowering Ameri-
can and Allied military morale, and of creating nos-
talgia in the minds of the American and Allied
forces, and of creating war weariness among mem-
bers of the American and Allied armed forces, and
of discouraging members of the American and
Allied armed forces, and of impairing the capacity
of the United States to w^age war against its ene-
mies, or of any of said things. The indictment is
wholly deficient in said respects. Those very ma-
102 Iva Ikuko Toguri D' Aquino
terial allegations are entirely missing in the indict-
ment and, in consequence, if anything is pleaded
therein it is simply that the defendant entertained
a mental intent to commit or merely attempted trea-
son. However, neither of such offenses is known to
American law. In consequence, the language in said
paragraph 3(a) is entirely too general and sets forth
nothing but broad and general acts and conduct
which, in themselves, are entirely harmless and inno-
cent and, therefore, utterly insufficient to constitute
the crime attempted to be charged. Although the
indictment alleges legal conclusions of a crime of
treason it fails to set forth any ultimate facts con-
stituting such a crime and is utterly lacking in any
allegation of facts charging or showing that any act
or conduct of the defendant had any such effect or
result and, consequently, fails to allege a completed
[copy missing] The type of the pleading contained
in the indictment would compel the defendant, the
court and jury to resort to speculation to determine
the nature of the accusation and the ultimate facts
constituting the purported crime. In addtiion, it in
nowise informs the defendant of the nature and
facts of the crime it attempts to allege and wholly
fails to allege that the purported crime was com-
pleted.
6. A statement of the precise or approximate
time or times the defendant worked, announced and
wrote radio script as alleged in paragraph 3(a) on
page 2 of the indictment.
vs. United States of America 103
7. A statement of the nature, character and con-
tents, in substance or effe-ct, of the statements made
by defendant as a radio speaker, radio announcer
and broadcaster of recorded music alleged in para-
graph 3(a) on page 2 of the indictment.
8. A statement of the nature, character and con-
tents, in substance or effect, of the radio script pre-
pared or composed by the defendant and of her
talks and announcements and announcements of
radio script alleged in paragraph 3(a) on page 2
of the indi<?tment.
9. A statement of the nature and contents, in
substance or effect, of the announcements and intro-
ductions made by the defendant of musical record-
ings and talks for broadcast by radio from Japan
alleged in paragraph 3(a) on page 2 of the indict-
ment, and the names of the record musical pieces or
recordings broadcast by radio.
Neither the precise nor the approximate time or
times of the occurrences of the matters alleged in
paragraph 3(a) of the indictment are set forth
therein nor is there any statement therein of the
nature, character and contents of the acts and con-
duct of the defendant alleged to have been made by
her as a radio speaker, announcer and broadcaster,
that is to say, of the material ultimate facts. Neither
the nature, character nor contents of the radio
script prepared and composed by the defendant or
of her talks and announcements, and announcements
104 Iva Ikuko Toguri D' Aquino
of radio script, or the names of the musical record-
ings she is asserted to have broadcast, are set forth
therein. In consequence, the defendant cannot ascer-
tain therefrom and is neither advised nor informed
thereby in what respect or respects, if any, in which
the radio script, announcing and broadcasting, and
musical recordings broadcasted w^ere unlawful and
is neither advised nor informed as to the nature
and character thereof. She, therefore, requests that
she be advised specifically as to these particulars
and of what is intended to be charged against her,
and that she be supplied with copies of the said
script with which she will be confronted at the trial
in the prosecution's attempt to prove these charges
and with a statement, in substance or effect, of the
precise and actual nature, character and contents
of the talks, announcements and broadcasts she is
alleged to have made which the prosecution will at-
tempt to prove at the trial and the respects and
particulars wherein the same were treasonable or
are asserted or will be asserted to be of a treasonable
nature at any trial of the issues which may be had
herein.
10. A statement of the name of the ^^ another
person," mentioned in overt act No. 1 in paragraph
1 on page 3 of the indictment, with whom the de-
fendant discussed the proposed participation of de-
fendant in the radio broadcasting program therein
mentioned.
vs. United States of America 105
The name of the ^* another person'' is not alleged
in the indictment to be unknown to the grand jurors
and, in consequence, it is to be presumed that the
name of such person actually was known to them
and to j)laintiff and that it, therefore, should have
been alleged therein. Without the name of the per-
son and the precise or approximate time the discus-
sion was had being revealed (the time there specified
extends over a period of two calendar months) the
defendant is not informed either when or with whom
she is -charged with having the discussion and is
unable to ascertain whether she at any time had a
discussion with any specific person and is neither
advised nor informed as to what the allegation
means.
11. A statement of the precise or approximate
time when overt act No. 1, mentioned in paragraph
1 on page 3 of the indictment, took place together
with a statement of the words spoken by each, in
substance or effect, in the discussion therein men-
tioned and the nature of the discussion.
12. A statement of the precise or approximate
time when overt act No. 2, mentioned in paragraph
2 on page 3 of the indictment, took pla-ce, together
with the names and addresses of the employees of
the Broadcasting Corporation of Japan with whom
the defendant is alleged to have had the discussion
therein alleged, together with a statement of the
words spoken, in substance or effect, by each of them
and defendant, in that discussion.
106 Iva Ikuko Toguri D' Aquino
13. A statement of the precise or approximate
time when overt act No. 3, mentioned in paragraph
2 on page 4 of the indictment, took place, together
with the words spoken by defendant into the micro-
phone, in substance or effect, and the nature of the
statements made.
14. A statement of the precise or approximate
time when overt act No. 4, mentioned in paragraph
4 on page 4 of the indictment, took place^ together
with the words spoken by defendant, in substance
or effect, into the microphone and also a statement,
in substance or effect, of the precise reference al-
leged therein to have been made by her concerning
enemies of Japan.
15. A statement of the precise or approximate
time when overt act No. 5, mentioned in paragraph
5 on page 4 of the indictment, took place, together
with the nature and contents, in substance and ef-
fect, of the script prepared for subsequent radio
broadcast concerning the loss of ships, the ships to
which it referred and the precise statement which
was made concerning the loss of ships, either in sub-
stance or effect.
16. A statement of the precise or approximate
time when overt act No. 6, mentioned in paragraph
6 on page 4 of the indictment, took place, together
with the words which were spoken, in substance or
effect, concerning the loss of ships, together with a
I
vs. United States of America 107
statement of what ships the statement referred to.
17. A statement of the precise or approximate
time when overt act No. 7, mentioned in paragraph
7 on page 4 of the indictment, took place, together
wth a statement of the nature and contents, in sub-
stance or effect, of the radio script therein alleged
to have been prepared.
18. A statement of the precise or approximate
time when overt act No. 8, mentioned in paragraph
8 on page 4 of the indictment, took place, together
with the words, in substance or effect, which were
spoken into the microphone and the names of each
of the persons who engaged in the entertainment
dialogue therein mentioned and the words spoken,
in substance or effect, by each of the participants
in the entertainment dialogue therein mentioned.
Each of the eight acts alleged in the indictment
to be overt acts are alleged in terms so general,
broad, loose, uncertain, unspecific, unrevealing and
concealing as to time and as to facts sought to be
elicited in the eight particulars hereinabove set
forth that they are susceptible to nothing but specu-
lation and guesswork. Each of those overt acts as
alleged in the indictment are allegations of matters
which on their face are absolutely innocent and in-
nocuous matters. Inasmuch as these special allega-
tions of overt acts modify and control the general
allegations of the purported crime and are innocent
on their face the indictment in nowise advises or
108 Iva Ikuko Toguri D^ Aquino
informs the defendant of the accusation against her
but leaves all these important matters to the im-
agination.
19. A statement of the times and places where
defendant was arrested in Japan and confined to
prison by agents of the United States, and there-
after released therefrom, the periods of time of said
imprisonments, the authority and purpose for the
said arrests and commitments to imprisonment and
discharges therefrom, and a statement of the pur-
pose for which and the authority under which de-
fendant was arrested in Japan and brought to San
Francisco in this Federal Judicial District shortly
prior to the date of the return of the indictment
herein, as alleged in the final paragraph on page 4
of the indictment, and also a statement whether or
not each of her said arrests and imprisonments and
releases therefrom, and her removal from Japan to
San Francisco, and each of said things, were done
with the consent and authority of the Allied Powers,
the government of Portugal, and the government of
Japan or of any of said sovereign powers.
Inasmuch as the foregoing particulars, facts and
details are not fully alleged in the indictment the
defendant is neither advised nor informed thereby
of the legal authority, if any existed at the time of
said occurrences or now exists, for her arrests and
imprisonments in Japan and discharges therefrom
and her removal to San Francisco and whether this
court has acquired and has any jurisdiction over
vs. United States of America 109
her person and over the cause, it appearing on the
face of the indictment that the arrest of defendant
in Japan and her removal to this jurisdiction was
an illegal extraterritorial act of the United States
wholly outside its jurisdiction which did not and
could not confer jurisdiction over the defendant and
of the cause upon this court or confer lawful venue
hereof upon this court. The indictment fails to set
forth and, therefore, to inform the defendant and
this court whether or not the arrests, imprisonments
and removal of defendant from Japan to the United
States was authorized by or consented to by the
Allied Powers, the government of Portugal, and the
government of Japan, or any of said soverign pow-
ers, in consequence of which, neither the defendant
nor the court can ascertain what authority, if any,
existed therefor or ascertain whether the court has
jurisdiction over the defendant or over the cause.
20. A statement whether the employment of de-
fendant as a radio operator, radio announcer, radio
script writer and broadcaster of recorded music, as
alleged in paragraph 3(a) of the indictment, was or
was not in a capacity for which only Japanese na-
tionals were eligible.
It cannot be ascertained therefrom whether or not
the said acceptance of employment by defendant in
said corporation was in a capacity for which Japa-
nese nationals only were eligible, a fact which is
material to the cause and jurisdiction of the court as
bearing on the legal conclusion that such a type of
employment in and of itself constituted an act of
110 Iva Ikuko Toguri D' Aquino
expatriation according to our law whereby a person
thereby loses the nationality then possessed and
thereby becomes either a foreign subject or acquires
a foreign nationality, by operation of U. S. law.
21. A statement of the facts upon which are
based the conclusions in the indictment, in para-
graph 1 on page 1, paragraph 2 on page 2, and
paragraph on top of page 4, that defendant is a
citizen of the United States and a person owing
allegiance to the United States.
22. A statement whether or not the defendant at
Tokyo, Japan, was united in marriage to her now
husband, Felipe J. D 'Aquino, on April 19, 1945, who
then was and ever since then has been and now is a
national, citizen and domiciliar}^ of Portugal re-
siding in Japan.
It appears from the indictment that the defend-
ant is a married person and a resident of Japan
and, therefore, is presumed to be a foreigner who
was brought to San Francisco in the custody of
U. S. agents from which it follows that, by opera-
tion of law, she is a foreign national and, in conse-
quence, defendant requests that the plaintiff be re-
quired to state openly and unequivocally whether
or not defendant is and long has been exclusively a
national, citizen and domiliciary of Portugal, law-
fully residing in Japan, and whether or not she
acquired that political status upon and by virtue of
her marriage to a Portuguese national, citizen and
domiciliary resident in Japan on April 19, 1945.
I
vs. United States of America 111
23. A statement whether or not the United States
heretofore, within the past three years, arrested
defendant thrice or at all in Japan on the same
accusation of treason as charged in the indictment
herein and imprisoned her thrice and thereafter,
acquitted her of the charges or convicted her thereon
or sentenced or imprisoned her thereon and there-
after liberated her from such imprisonment at any
time and, if so, when.
The indictment is silent on these material par-
ticulars although the facts thereof are peculiarly
within the knowledge of the plaintiff. The fact of
a prior acquittal (autrefois acquit) or conviction is
a bar to the present accusation and the indictment
is barred by the constitutional provision against sub-
jecting defendant twice for the same offense and
twice putting her in in jeopardy of life or limb for
the same offense and for inflicting upon her a pro-
hibited repetition of penalty which is cruel and
unusual punishment.
Each of the foregoing 23 specified particulars and
their details, in which the indictment is fundamen-
tally lacking, are essential and necessary to advise
and inform the defendant of the nature of the ac-
cusation against her with sufficient precision to
enable her to learn the nature thereof, to enable
her to prepare her defense thereto, to prevent her
from being taken by surprise at any trial of the
issues herein and to enable her to plead the con-
clusion thereof in bar of another prosecution on the
same charge.
112 Iva Ikuko Toguri D' Aquino
The defendant states to the Court that this ap-
plication and motion for a bill of particulars is filed
in good faith; that it is not filed for the purpose
of delay, and that it is filed and made so that she
may inform herself of the nature and cause of the
accusation against her and thereby enable her prop-
erly to prepare her defense.
Dated: November 15, 1948.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
State of California,
City and County of San Francisco — ss :
Wayne M. Collins, being first duly sworn, deposes
and says: that he is attorney of re<?ord for Iva
Ikuko Toguri D 'Aquino, defendant herein; that he
has read the foregoing Motion for Bill of Particu-
lars and knows the contents thereof ; that he verily
believes the fact to be that the indictment is vague,
indefinite, uncertain and deficient in the respects,
particulars and details specified in said Motion;
that the defendant cannot safely go to trial on the
indictment herein without the particulars and de-
tails of the matters specified in the said Motion and
that said particulars and details are essential and
necessary to inform defendant of the nature of the
accusation against her with sufficient precision to
enable her to prepare for any trial of the cause that
may be had herein, to prevent her from being taken
by surprise thereat and to permit her to plead the
vs. United States of America 113
conclusion thereof in bar of another prosecution on
the same charge.
/s/ WAYNE M. COLLINS.
Subscribed and sworn to before me this 15th day
of November, 1948.
[Seal] /s/ JANE M. DOUGHERTY,
Notary Public in and for the City and County of
San Francisco, State of California.
Points and Authorities in Support of Motion
for Bill of Particulars
If an indictment fails to allege offenses charged
with sufficient fullness and definiteness as to time,
place, and other circumstances and more precise in-
formation is needed it should be obtained by a bill
of particulars.
Peck V. U.S. (CCA-7), 65 Fed. 2d. 59, 61,
cert. den. 290 U.S. 701.
See also: Saul Samuel et al. v. U.S. (CCA-9),
169 Fed. 2d. 787, 791, decided Aug. 20, 1948.
Billingsley v. U.S. (CCA-8), 16 Fed. 2d. 754,
755, where denial was held prejudicial error.
If charges in an indictment are so general that
they do not advise the accused specifically of the
acts of which he is accused the deficiencies must be
supplied by a bill of particulars.
Wilson V. U.S. (CCA-NY), 275 Fed. 307, 310-
311, cert. den. 257 U.S. 649.
114 Iva Ikuko Toguri D^ Aquino
The office of a bill of particulars is to inform the
accused of the nature of the charge with sufficient
precision to enable him to prepare for trial, prevent
surprise and to plead his acquittal or conviction in
bar of another prosecution for the same offense.
U.S. V. Aluminum Co. (DCNY) 41 F.S. 347,
348.
9 Hughes Fed. Prac. pg. 515, sec. 7046.
10 C. J. S. pg. 1096.
Respectfully submitted,
/s/ WAYNE M. COLLIN'S,
Attorney for Defendant.
[Endorsed] : Piled November 15, 1948.
District Court of the United States, Northern Dis-
trict of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Prancisco,
on Monday, the 3rd day of January, in the year of
our Lord one thousand nine hundred and forty-nine.
Present: The Honorable Michael J. Roche,
District Judge.
vs. United States of America 115
[Title of Cause.]
ORDER
(Minute order that Motion for Bill of Par-
ticulars, Motion to Dismiss Indictment be
denied, and that Motion for Discovery and
Inspection be granted as to request number 7
but denied as to remaining requests, and that
Motion to Strike Indictment be denied.) (Plea
of ^' Not Guilty.'')
This cause came on this day for entry of plea,
also for hearing on following motions: motion to
dismiss Indictment, motion to strike, motion for
discovery and inspection, motion for bill of par-
ticulars. The defendant, Iva Ikuko Toguri
D 'Aquino, was present in the custody of the U. S.
Marshal and with her attorney, Wayne Collins, Esq.
Tom De Wolfe, Esq., Special Assistant to the At-
torney Greneral, was present on behalf of the United
States.
It is Ordered that the Motion for Bill of Par-
ticulars made pursuant to Rule 7(f) of the Rules
of Criminal Procedure be and the same is hereby
denied. That the Motion to dismiss the Indictment
for failure to allege an offense be and the same is
hereby denied. That the motion to dismiss the In-
dictment made pursuant to Rule 12(b) of the Rules
of Criminal Procedure be and the same is hereby
denied. That the Motion for discovery and inspec-
tion made pursuant to Rule 16 of the Rules of
Criminal Procedure be granted as to request number
116 Iva Ikuko Toguri D' Aquino
seven (7), and as to the remaining requests be and
the same is hereby denied. That the Motion to strike
the Indictment be and the same is hereby denied.
The defendant was called to plead and thereupon
said defendant entered a plea of ^^Not Guilty'' to
the Indictment filed herein against her, which said
plea was ordered entered.
On motion of Mr. Collins and with consent of
Mr. De Wolfe, it is Ordered that this case be set for
trial on May 16, 1949. (Jury)
[Title of District Court and Cause.]
NOTICE .
To Frank J. Hennessy, United States Attorney,
and to Tom DeWolfe, Special Assistant to the
Attorney General, Attorneys for the Plaintiff
You and each of you will please take noti<3e that
on Monday, the 7th day of March, 1949, at the
Courtroom of the above-entitled Court, 3rd Floor,
Post Office Building, 7th and Mission Streets, San
Francisco, California, at the hour of 2 o'clock p.m.
of said day, or so soon thereafter as counsel can
be heard, the defendant will bring on for hearing
the within motions.
Dated: March 1, 1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
vs. United States of America 117
[Title of District Court and Cause.]
I.
MOTION FOR ORDER AUTHORIZING AND
DIRECTING ISSUANCE OF SUBPOENAS
REQUIRING ATTENDANCE OF WIT-
NESSES IN A FOREIGN COUNTRY AT
THE TRIAL HEREIN AT THE EXPENSE
OF THE GOVERNMENT AND FOR SERV-
ICE THEREOF
The defendant, Iva Ikuko Toguri d 'Aquino, moves
the Court for its order authorizing and directing the
issuance of subpoenas requiring the • attendance of
the hereinafter named witnesses, residing abroad at
the places hereinafter set forth, at the trial herein
at the expense of the plaintiff, the U. S. Govern-
ment, and for the service of said process of court.
The names, addresses and nationalities and citi-
zenship of the witnesses whose names are known to
defendant and the necessary and material testimony
the defendant expects them to give at the trial
herein are as set forth in the affidavit of the defend-
ant filed in support of this motion which hereby is
incorporated herein by reference. Each of the said
witnesses named in said affidavit, together with
others whose names are not presently known to de-
fendant, is a necessary and material witness for the
defendant on the trial of this cause and a witness
whose testimony is necessary and material to the
defendant in her defense to said action, the ma-
teriality of their testimony being set forth in the
118 Iva Ikuko Toguri D' Aquino
defendant's affidavit filed in support of this motion.
The defendant cannot safely proceed to a trial of
said action without the production of the person of
each of said witnesses in court at the trial herein
to testify in person so that their individual testi-
mony, attitudes and demeanors can be observed, con-
sidered and w^eighed by the Court and the jury. The
failure of the Court to order the production of said
witnesses at the trial herein and the failure of the
Government to produce or allow them to be produced
at the expense of the Government will result in a
failure of justice and deprive the defendant of her
substantial constitutional and statutory rights to a
fair and impartial trial and to obtain witnesses in
her favor, in violation of the provisions of the Sixth
Amendment and the due process guaranty of the
Fifth Amendment of the Constitution.
II.
MOTION TO DISMISS THE INDICTMENT
In the event the defendant's foregoing Motion
No. I is denied the defendant moves the Court to
dismiss the indictment and discharge the defendant
from custody on the grounds that the denial thereof
deprived the Court of jurisdiction to proceed in the
■cause and that it deprived the defendant of her
right to a fair and impartial trial by jury' and of
her right to obtain witnesses in her own defense, in
violation of the provisions of the Sixth Amendment
and of the due process guaranty of the Fifth
Amendment of the Constitution.
vs. United States of America 119
III.
MOTION THAT COURT CONDUCT PART OF
TRIAL BY JURY IN TOKYO, JAPAN,
HONG KONG, CHINA, and SYDNEY, AUS-
TRALIA
In the event the foregoing Motion No. II is de-
nied the defendant moves the Court to order part
of the trial of the defendant by jury to be held and
conducted in Tokyo, Japan, Hong Kong, China, and
Sydney, Australia, to suit the convenience of the
citizen and alien witnesses residing in said foreign
countries whose names, residences and nationalities
are set forth in defendant's affidavit filed in support
of this motion and whose testimony is necessary and
material to her defense at her trial herein, as also
set forth in said affidavit, and for the purpose of
obtaining said testimony, at the expense of the
United States government and that the travel ex-
penses and subsistence expenses of defendant's at-
torney for representing her thereat be defrayed by
the United States government for the reason that
she cannot bear said expenses or any part thereof,
as appears by the affidavit of the defendant filed in
support of this motion.
IV.
MOTION TO DISMISS THE INDICTMENT
In the event the defendant's foregoing Motion No.
Ill is denied the defendant moves the Court to dis-
120 Iva Ikuko Toguri B' Aquino
miss the indictment upon the gromids that the Court
thereby lost jurisdiction to proceed in the cause, and
that such effectively has deprived the accused de-
fendant of her right to a fair, speedy and impar-
tial public trial, by an impartial jury in the District
and deprived her of the right to have compulsory
process for obtaining witnesses in her favor, in vio-
lation of the provisions of the Sixth Amendment
and the due process of law guaranteed to her by the
Fifth Amendment of the Constitution.
V.
MOTION TO POSTPONE TRIAL OF THE
CAUSE AND EITHER TO DISCHARGE
DEFENDANT FROM CUSTODY OR TO
ADMIT HER TO BAIL PENDING SUCH
TIME AS THE GOVERNMENT PROVIDES
FOR THE PRODUCTION OF DEFEND-
ANT'S WITNESSES FROM ABROAD TO
TESTIFY IN PERSON AT THE TRIAL
HEREIN
In the event the defendant's foregoing Motion No.
IV is denied the defendant moves the Court to post-
pone the trial of the cause and either to discharge
the defendant from custody or to admit her to bail
pending such time as the government provides for
the production of defendant's witnesses from
abroad at the expense of the Government upon the
grounds that the Court has no jurisdiction to pro-
vs. United States of America 121
ceed further with the trial of said cause and that to
compel the defendant to stand trial under such cir-
cumstances deprives her of a fair, speedy and im-
partial trial and to have compulsory process for
obtaining witnesses in her favor, in violation of the
provisions of the Sixth Amendment and the due
process of law guaranty of the Fifth Amendment
of the Constitution.
VI.
MOTION TO DISMISS THE INDICTMENT
In the event the defendant's foregoing Motion No.
V is denied the defendant moves the Court to dis-
miss the indictment and discharge the defendant
from custody on the grounds the denial thereof de-
prived the Court of jurisdiction to proceed in the
cause and that it deprived the defendant of her
right to a fair and impartial trial by jury and de-
prived her of the right to obtain witnesses in her
own defense, in violation of the provisions of the
Sixth Amendment and of the due process guaranty
of the Fifth Amendment of the Constitution.
122 Iva Ikuko Toguri B' Aquino
VII.
MOTION FOR OEDER AUTHORIZING AND
DIRECTING ISSUANCE OP SUBPOENAS
REQUIRING ATTENDANCE OP WIT-
NESSES ABROAD AT THE TAKING OP
THEIR DEPOSITIONS AND PROVIDING
POR THE TAKING OP DEPOSITIONS OP
POREIGNERS AND CITIZENS ABROAD,
AT THE EXPENSE OP THE GOVERN-
MENT, INCLUDING THE EXPENSES OP
TRAVEL AND SUBSISTENCE OP DE-
PENDANT'S ATTORNEY AND INVESTI-
GATOR-INTERPRETER POR INTER-
VIEWING WITNESSES AND POR
ATTENDANCE AT THE EXAMINATIONS
In the event the defendant's foregoing Motion No.
VI is denied, the defendant moves the Court, under
Rule 17 of the Rules of Criminal Procedure, for its
order authorizing and directing the issuance and
service of subpoenas for the taking of the oral depo-
sitions of the hereinafter named persons who reside
in the foreign countries shown after their names and
who, according to the best knowledge, information
and belief are citizens of the United States, Por-
tugal, Prance, Australia or Great Britain, or Japan,
as shown in the affidavit of the defendant filed in
support of this motion, to be taken in Tokyo, Japan,
and elsewhere in Japan, in Hong Kong, China, and
Sydney, Australia, respectively, at the expense of
the United States government on the grounds and
vs. United States of America 123
for the reason that the defendant cannot bear the
expense thereof;
The defendant also moves the Court for the ex-
penses of travel from San Francisco, California, to
Tokyo, Japan, Hong Kong, China, and Sydney, Aus-
tralia, and return therefrom, and subsistence of her
attorney for attendance at the examinations of said
witnesses on the taking of said depositions at the
expense of the United States government on the
grounds and for the reason that the defendant can-
not bear the expense thereof;
The names of the witnesses whose depositions the
defendant desires to be taken, their nationalities
insofar as known to defendant and her counsel, their
places of residence and the place where their depo-
sitions can be taken are as follows :
124
Iva Ikuko Toguri D^ Aquino
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vs. United States of America 127
This motion is made upon the ground that each
of the named witnesses is a necessary and material
witness for the defendant on the trial of said action
and a witness whose testimony is necessary and
material to the defendant in the defense of said
action.
The facts to which each of said witnesses is ex-
pected to testify and the materiality of that testi-
mony is set forth in the affidavit of the defendant
filed in support of this motion and is incorporated
herein by reference for said purposes.
The defendant cannot safely proceed to trial of
said action without the testimony of said witnesses.
The taking of said depositions is the sole remain-
ing avenue available to the defendant to obtain the
testimony of said witnesses which is material and
necessary to her defense at the trial herein and
which is not available to defendant from any other
source or sources save and except said witnesses
who are in foreign countries, a majority of whom
are in Japan from whence defendant was brought
by agents of the United States, away from her home,
husband, friends and witnesses.
Therefore, defendant moves that a commission
issue to the United States Consul at Yokohama,
Japan, or Kobe, Japan, for the purpose of taking
the depositions of the aforesaid witnesses in Japan,
at Tokyo, Yokohama or Kobe, Japan, as shall to
him be convenient, commencing on or about April
1, 1949, at an hour convenient to him, and to con-
tinue thereafter, until the depositions of each said
witness shall have been taken, or that, in lieu of
128 Iva Ikuko Toguri D' Aquino
said method of taking said depositions, the deposi-
tions of such witnesses be taken by stipulation be-
tween the parties hereto in Japan during April,
1949, at such places and in such manner, before
any person the respective attorneys for the parties
hereto there shall agree upon.
Defendant, by her attorney, represents to the
Court that the attorneys for the plaintiff have in-
formed her attorney herein that they are willing
to consent that the depositions of the defendant's
witnesses, w^hether said witnesses be citizens or
aliens abroad, may be taken in Japan and also in
Hong Kong and that, for said purpose will there
provide for an attorney for the U. S. Government
to be present at the taking thereof and to represent
the plaintiff thereon and to do what they can to
expedite the issuance of the necessary passports
and also military permits from SCAP, Tokyo, for
defendant's attorney and representative to enter
Japan and there locate and interview defendant's
witnesses, whosoever they may be, and to take their
depositions there by stipulation without requiring
court orders first authorizing the taking of the
depositions of each of the aforesaid witnesses and
of each other person who may be found in Japan
to be a witness for the defendant whose deposition
the defendant or her attorney there may desire to
take.
The failure or refusal of the Court to order and
authorize the depositions of said witnesses to be
taken abroad and the failure of the U. S. Govern-
ment to enable such depositions to be taken abroad
vs. United States of America 129
at the expense of the Government will result in a
failure of justice and deprive the defendant of her
substantial constitutional and statutory rights to a
fair and impartial trial and to obtain witnesses in
her favor, in violation of the provisions of the Sixth
Amendment and the due process of law guaranty
of the Fifth Amendment of the Constitution.
VIII.
MOTION TO DISMISS INDICTMENT
In the event the defendant's foregoing Motion
No. VII is denied, or the military permits for de-
fendant's attorney therein mentioned is denied by
SCAP, Tokyo, the defendant moves the Court to
dismiss the indictment and discharge the defendant
from custody on the grounds the denial thereof
deprived the Court of jurisdiction to proceed in
the cause and that it deprived the defendant of her
right to a fair and impartial trial by jury and de-
prived her of the right to obtain witnesses in her
own defense, in violation of the provisions of the
Sixth Amendment and of the due process of law
guaranty of the Fifth Amendment of the Consti-
tution.
Each of the foregoing motions will be made and
based upon the notice of these motions, said motions,
affidavit in support of said motions, and upon all
the records, pleadings, files, court orders and docu-
ments on file herein.
/s/ WAYNE M. COLLINS,
Attornev for Defendant.
130 Iva Ikuko Toguri D' Aquino
Points and Authorities in Support of Motions
Rules 15, 17 and 26, Rules of Criminal Procedure.
Compare, Rules 29 and 30, R.C.P.
Fifth Amendment, U. S. Constitution.
Sixth Amendment, U. S. Constitution.
Respectfully submitted,
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Title of District Court and Cause.]
AFFIDAVIT IN SUPPORT OF MOTIONS
Northern District of California,
State of California,
City and County of San Francisco — ss.
Iva Ikuko Toguri d 'Aquino, being first duly
sworn, deposes and says: that she is the defendant
in the above-entitled action and is detained under
process of this Court, without bail, in San Fran-
cisco County Jail No. 3, Dunbar and Washington
Streets, San Francisco, California; that she is an
adult person over the age of twenty-one (21) years;
that ever since on or about July 25, 1941, she has
continuously resided in Tokyo, Japan, where, on
April 19, 1945, she was lawfully united in marriage
to one, Felipe J. d 'Aquino, who then and ever since
his birth has been and still is a national and citizen
of Portugal residing in Tokyo, Japan; that she
thereby and thereon, pursuant to the Uw of Portu-
vs. United States of America 131
gal, as also the law of Japan, as also by the law
of all other civilized nations and by international
law, became and ever since then continuously has
been and now is a national and citizen of Portugal
and in 1945 was formally naturalized as a Portu-
guese national by said marriage and by formal
registration of said marriage as such a citizen of
Portugal at the office of the Consul of Portugal at
Tokyo, Japan; that ever since her said marriage
she has resided at No. 396 Ikejiri Machi, Setagaya-
Ku, Tokyo, Japan, with her said husband.
On August 26, 1948, defendant was arrested by
agents of the United States, acting imder orders of
the Attorney General of the United States, and
thereupon imprisoned in the Sugamo Prison, Tokyo,
Japan, and thereafter was forcibly taken aboard
the S. S. General P. R. Hodges, a U. S. transport
vessel, on which she was brought to San Francisco,
CalifoiTiia, on September 25, 1948, and while said
vessel was in progress of docking at said port she
was seized by agents of the U. S. Federal Bureau
of Investigation upon a purported complaint filed
in tliis Court on September 25, 1948, was brought
before the U. S. Commissioner in this District and
thereafter was indicted in this cause which is now
pending in this court.
T\w defendant is an indigent; aside from used
clothing and a few personal effects, the reasonable
value of which does not exceed Twenty-five ($25.00)
Dollars, she possesses the following assets only, viz.,
the equivalent of the sum of approximately One
132 Ivalkuko ToguriD' Aquino
Hundred ($100.00) Dollars on deposit in the Postal
Savings Bank in Tokyo, jointly with her husband
in Tokyo, Japan, household furniture, dishes, trunk,
sewing machine and utensils of the reasonable value
of One Hundred ($100.00) Dollars, and a remote
claim or right, subservient to the right of the Attor-
ney General as the Alien Property Custodian, in
and to certain real property situated in Los Angeles
County, California, described as follows, to-wit:
Lots 42 and 57 of the South Gate Tract in the
Rancho Tajauta, as per map recorded in Book 13,
Pages 14 and 15 of Maps in the office of the County
Recorder of said County, and portion of the 538.28
acre tracfc of land allotted to Jose Maria Abila in
the partition of Rancho Tajauta, Case number 1200
of the 17th Judicial District Court in the County
of Los Angeles,
which said property she is informed and believes
has an approximate market value of Three Thou-
sand Five Hundred ($3,500.00) Dollars, the interest
of the defendant therein, however, being at most a
disputable claim and hence of substantially no value
whatever to her.
By reason of her said poverty and indigency the
defendant does not have sufficient means and is
actually unable to bear the expense of producing
her witnesses, hereinafter named, of any of them,
to testify in person in her defense at the trial herein,
or to bear the expense of their travel, subsistence
and witness fees for attending or to have served the
subpoenas for the taking of their depositions or
any of them.
vs. United States of America 133
By reason of her said poverty and indigency the
defendant does not have sufficient means and is
actually unable to bear the expense of the taking
of oral depositions of her said witnesses, or of any
of them, and is unable to bear either the expenses
of travel or subsistence of her attorney for attend-
ance at the said examinations and the taking of
said depositions abroad.
That each of the witnesses, hereinafter named,
and named in her motion for the production of
defendant's witnesses at the trial herein and in the
motion for the taking of depositions is a necessary
and material witness for the defendant on the trial
of said action and the testimony of each is neces-
sary and material to the defendant in her defense
of said indictment.
That the defendant cannot safely proceed to a
trial of said action without the testimony of said
witnesses.
The witnesses whose testimony is necessary and
material to be given at the trial herein or to be
given by the depositions to be introduced in evi-
dence at the trial herein, their places of residence,
their nationalities and citizenships which are un-
known to defendant but which she believes to be as
hereinafter set forth, and the material and neces-
sary testimony they are expected to give, in sub-
stance and effect, are as follows:
1. The Hon. Lars Tillitse, a citizen of Denmark,
Danish Representative to SCAP, Tokyo, Japan, to
testify that defendant was employed from on or
134 Iva Ikuko Toguri V Aquino
about January 1, 1944, to sometime in May, 1945,
by the Royal Danish Legation in Tokyo, Japan,
while he was Danish Minister to Japan ; to the facts
and circumstances how her said employment arose;
the hours of her said employment, the days she so
worked and the nature and duties of her employ-
ment, the days she was absent from her work; the
compensation paid to her for said services; the
conditions under which she lived in Japan, to the
fact that she was subjected to constant police sur-
veillance by the Kempeitai, ward and metropolitan
police departments in Tokyo; her physical and
mental condition, as observed by him during said
period; the facts of her marriage to a Portuguese
national and citizen on April 19, 1945, her registra-
tion and naturalization as a Portuguese citizen at
the Portuguese Consulate in Tokyo in 1945; state-
ments made by her to him and conversations de-
fendant had with 'him during said period relating
to her citizenship, activities and loyalty to and sym-
pathy with the United States and its and the Allied
cause ; and that her reputation for truth and verac-
ity in the community in Japan where she resides
is excellent.
2. The Hon. J. A. Abranches Pinto, a Portu-
guese citizen. Consul of Portugal, Tokyo, Japan,
to testify he has been acquainted with the defendant
from 1943 to date; that he attended the wedding
of defendant to Felipe J. d 'Aquino, a Portuguese
citizen, at Sophia University Chapel, Tokyo, Japan,
vs. United States of America 135
on April 19, 1945; that said marriage was regis-
tered at the Portuguese Consulate in Tokyo in
1945; that by said marriage and the defendant's
formal registration thereof in 1945 at said consulate
defendant became a naturalized citizen of Portugal
and ever since then has been a national and citizen
of Portugal; to testify to her registrations there
as such in 1946, 1947 and 1948; to identify and
testify to the formal registration certificates issued
to her during each of said years; to testify, as an
expert witness, duly qualified so to do, that by the
law of Portugal said marriage and said registration
in 1945 by the defendant constituted her formal
naturalization as a Portuguese national and citi-
zen; that defendant was kept under constant sur-
veillance by the Kempeitai, ward and metropolitan
police in Tokyo and was compelled to report to said
agencies repeatedly from 1943 to the conclusion of
hostilities by Japan's surrender in 1945 to the
Allied Powers; and that defendant's reputation for
truth and veracity in the community in Japan
where she resides is excellent.
3. S. Lt. Nicklos Schenk, a citizen of Holland,
Custodian Officer, Netherlands Legation, General
Liaison, G. H. Q., Tokyo, Japan, to testify that
from lat^ 1943 to August, 1945, he was acquainted
with the defendant w^hile he was held as a prisoner
of war by the Japanese in Tokyo, Japan; that he
was frequently, during said period of time, at the
Radio Tokyo broadcasting offices; that he then was
and is acquainted with the females w^ho there broad-
136 Iva Ikuko Toguri D' Aquino
cast on the Zero Hour program during said period
of time ; to testify to their names and addresses and
to testify to the nature and content of their broad-
casts and to identify them and to distinguish them
from the defendant; that the recorded music played
on the prisoner of war Zero Hour was lively in
character and was calculated to and did bolster the
morale of U. S. and Allied troops ; that the defend-
ant never committed any of the unlawful acts men-
tioned in the indictment herein; that the defendant
neither by word nor deed did anything to injure,
harm or betray the cause of the United States or
its Allies; that a large number of Allied prisoners
of war there were held by the Japanese under
duress and were coerced into radio broadcasting
for the Japanese; that, at great personal risk the
defendant, during said period of time, secretly and
repeatedly conveyed to U. S. and Allied prisoners
of war, there held by the Japanese, new^s of the
progress of U. S. and Allied armed forces and news
of U. S. and Allied military and naval successes
for the purpose of bolstering up their spirits, cour-
age and hopes and secretly, at like great personal
risk, supplied to them food, cigarettes, blankets and
medicine; and that she gave comfort to said pris-
oners of war' and aided them in their efforts to
defeat the purposes of their Japanese oppressors
and to testify to the nature, manner and details of
that aid and comfort; and that during the whole
of said period of time the defendant had it within
her power to report the United States and Allied
vs. United States of America 137
prisoners of war to the Kempeitai for their broad-
casting activities in aiding the U. S. and Allied
cause and thereby betray them to the enemy but
knowingly failed and refused so to do and thereby
aided the U. S. and Allied cause by keeping said
matters and things secret from the Japanese.
4. Mr. Takano, Tokyo, Japan, a Japanese citi-
zen, to testify he was manager of the business office
of Radio Tokyo from about August, 1943, to about
May, 1945; that he has been acquainted with the
defendant since sometime in August, 1943 ; that he,
in late 1943, upon the suggestions and prompting
of other persons whose names are not at this time
known to defendant, and upon what affiant is in-
formed and believes and therefore alleges upon
information and belief to have been a command or
order of Japanese Army officers, ordered and com-
pelled defendant to accept employment designated
by him at Radio Tokyo and that defendant was
coerced into so doing under duress and over her
repeated protests against complying therewith; that
the Zero Hour radio program from its inception to
its conclusion in August, 1945, was designed and
used, by the U. S. and Allied prisoners of war who
conducted that program, to aid and comfort the
U. S. by giving them true information as to the
whereabouts and condition of prisoners of war
taken by the Japanese, and by giving such infor-
mation to injure Japan; that the defendant never
wrote or composed any radio script whatever; that
the defendant never made any news or propaganda
138 Iva Ikuko Toguri D 'Aquino
broadcast by radio or otherwise at any time; that
defendant was kept under continuous surveillance
by the Kempeitai and was in continuous fear of the
Kempeitai and had good reason so to be; that de-
fendant never committed any of the overt or other
unlawful acts alleged in the indictment; and never
wrote, said or broadcast any statement or com-
mitted any act whatever against the U. S. and its
Allies or their cause or any statement in favor of
the Japanese; to testify to the dates and hours of
defendant's employment during said period and the
days she was absent therefrom.
5. Mr. George Togasaki, Editor, Nippon Times,
Tokyo, Japan, a Japanese citizen, to testify that
ever since August, 1944, he has been acquainted
with the defendant; that between August, 1944, to
about March, 1945, he was manager of the Zero
Hour radio program at Radio Tokyo; to state the
names and addresses of each female who was an
announcer or radio broadcaster on said program
during said period of time and to testify to the
nature, contents and character of their respective
broadcasts; to testify to the names of the person
or persons who prepared the script for said broad-
casting and to the nature, contents and character
thereof; the rates of compensation, if any, paid for
such services ; to testify to the time defendant there
was engaged, the type of work or services she per-
formed, the hours, days and months of her employ-
ment, the days she was absent therefrom; rate of
compensation ; to distinguish the work of the female
vs. United States of America 139
announcers on said program from the work per-
formed by defendant; to testify that defendant
never said, announced or broadcast by radio any
propaganda whatever for the Japanese or anything
against the U. S. or its Allies or against the U. S.
and Allied cause and that she never committed any
of the overt or other unlawful acts alleged in the
indictment herein ; that during her employment de-
fendant was held under constant surveillance by
the Japanese secret police and that the work she
performed was not voluntary but was coerced.
6. Ruth Sumi Hayakawa, Tokyo, Japan, a Japa-
nese citizen, to testify that she, Ruth Sumi Haya-
kawa, was employed for several years prior to 1943
continuously until about August, 1945, as a staff
announcer for Radio Tokyo; that she became
acquainted with the defendant about August, 1943;
that in excess of twenty U. S. and Allied prisoners
of war held by the Japanese were forced under
duress to become radio announcers for the Japa-
nese at Radio Tokyo; that certain of those prisoners
were forced, under duress and in order to save their
lives, to become broadcasters for the Japanese; that
there were a number of female broadcasters on the
Zero Hour program; to testify to the names of the
persons who prepared the radio script for broad-
casting on the Zero Hour program and to the names
of the males and females who broadcast thereon
and the nature and contents of those broadcasts,
the frequency of those broadcasts and to distinguish
their activities and duties of employment from those
140 Iva Ikuko Toguri D^ Aquino
of the defendant; to testify that the defendant
never at any time whatever prepared or wrote any
radio script and was not qualified so to do; to
testify who originated that program, the purpose
and objective thereof and that the prisoners of war
who were compelled to broadcast designed and con-
ducted the Zero Hour prisoner of war program to
serve the IT. S. and Allied military cause and to
defeat the purposes of the Japanese by broadcast-
ing U. S. and Allied prisoner of war messages to
U. S. and Allied troops giving names, whereabouts
and conditions of U. S. and Allied nationals taken
prisoner by the Japanese; that the defendant was
repeatedly registered with the Japanese police de-
partments and was under their constant surveil-
lance and by the Kempeitai; that the defendant
never said or did anything or broadcast anything
whatever favorable to the Japanese and never said
or did anything or broadcast anything against the
U. S. or its Allies or against the U. S. and Allied
cause; and that defendant never committed any of
the unlawful acts alleged in the indictment.
7. Mr. Ken Inouye, Care: GHQ., P. I. Office,
Tokyo, Japan, a U. S. citizen, to testify that he has
been personally acquainted with the defendant since
about August, 194S; that from August, 1943, to
August, 1945, he frequently visited Radio Tokyo,
knew a majority of the radio announcers there
employed; that he very frequently during said
period visited said office and listened to the Zero
Hour radio programs ; to testify to the nature and
vs. United States of A^nerica 141
character of that program and to identify the an-
nouncers thereon and the nature and contents of
the broadcasts of each male and female announcer
he heard thereon and the nature and types of music
recordings ; and to testify to the nature of the occu-
pation of defendant at Radio Tokyo, the days she
there worked during said period and the days she
was absent therefrom and the cause of such ab-
sences.
8. Mr. Kazuya Matsumiya, Tokyo, Japan, Seta-
gaya-ku, a Japanese citizen, to testify that he was
the principal of the ^'School of Japanese Language
and Culture'' in Shiba Ward Tokyo; that defend-
ant enrolled in said school in September, 1941, and
attended said school continuously from said date
until about December 31, 1942, for the purpose of
learning the Japanese language ; that when she first
enrolled she was ignorant of written Japanese and
could not read the written language and had a scant
ability to speak colloquial Japanese; and that she
made a little progress in reading and writing that
language; and to testify to the hours during the
day and the days she attended said school.
9. Sr. Jose Filomino d 'Aquino, of Atsugi, Ka-
nagawa Prefecture, Japan, a Portuguese citizen,
to testify that he has known the defendant since
June, 1943, and that up to August 15, 1945, saw
and conversed with her on an average once per
month; that she repeatedly during said time ex-
pressed to him her loyalty, sympathy and devotion
to the U. S. and Allied cause and her opposition to
142 Iva Ikuko Toguri D' Aquino
Japan; that he knew of his own knowledge that
defendant was kept in fear of the Kempeitai and
that she was under constant surveillance by that
organization and by the Tokyo metropolitan police
departments; to testify to the fact that the defend-
ant during said period suffered from malnutrition
and beri beri; and to testify that he became the
father-in-law of defendant on April 19, 1945, when
his son married the defendant in Tokyo.
10. Sra. Maria d 'Aquino, of Atsugi, Kanagawa
Prefecture, Japan, a Portuguese citizen, to testify
to the same facts as her husband, above stated, ex-
cept the last clause thereof; and that she became
the mother-in-law of defendant on April 19, 1945,
when her son married the defendant in Tokyo.
11. Mr. Thaddeus d 'Aquino, Care Portuguese
Consulate, Hong Kong (and Shanghai), China, a
Portuguese citizen, to testify that he has been
acquainted with the defendant since about July,
1942; that during various conversations had with
the defendant in Tokyo, Japan, from that time
until the spring of 1944, the defendant spoke to
him and told him of her loyalty to the U. S. and
sympathy with the cause of the U. S. and its Allies
and of her constant opposition to Japan on an
average of two to three times per week; that by
reason of the marriage of his brother Felipe J.
d 'Aquino to defendant on April 19, 1945, he became
the brother-in-law of defendant.
vs. United States of America 143
12. Felipe J. d 'Aquino, 396 Ikejiri Machi, Seta-
gaya-Ku, Tokyo, Japan, a Portuguese citizen, to
testify he married defendant on April 19, 1945 ; that
he has known her since 1942; that he married her
in Tokyo on April 19, 1945; that by virtue of said
marriage and her registration of said marriage as
a Portuguese citizen at the Portuguese Consulate
in Tokyo, Japan, in 1945, she formally was natural-
ized as a Portuguese citizen and national ; that from
Nov., 1943, to Aug. 15, 1945, he saw the defendant
almost daily; that defendant repeatedly told him
she was loyal and devoted to the U. S. and Allied
cause; that she many times during said period
secretly and at great personal risk delivered food,
medicine and blankets to U. S. and Allied prisoners
of war held by the Japanese; that he saw her at
Radio Tokyo many times during said period and
knows the nature of her employment ; that he knows
of his own knowledge and observation that the de-
fendant never wrote any radio scripts and that she
never committed any /of the unlawful acts charged
in the indictment.
13. Mrs. Unami Kido, 396 Ikejiri Machi, Seta-
gaya-Ku, Tokyo, Japan, a Japanese citizen, to tes-
tify she has been acquainted with the defendant
since about October, 1944, to date ; that the defend-
ant rented two rooms from her since that time ; that
she saw and talked to defendant almost daily be-
tween then and August 15, 1945, that she knows of
her own personal knowledge and observation that
Japanese police agents and the Japanese secret
police, the Kempeitai, maintained a constant surveil-
144 Iva Ikuko Toguri D' Aquino
lance over defendant during said period and that
defendant was in constant fear of them; that dur-
ing said period of time defendant continually told
her the United States would win the w^ar against
Japan and that she hoped the U. S. would win
quickly ; that she knows of her owti knowledge and
observed that the defendant would not contribute
anything whatever to Japan or the Japanese people
that in anywise could be deemed to aid it or them
in any manner; that defendant refused to contrib-
ute old clothes to Japan; that she refused to make
any voluntary money contributions to Japan; that
the defendant would not voluntarily cooperate with
any request of the Japanese authorities, neighbor-
hood associations or organizations; that defendant
refused to attend fire drills and public meetings;
that Japanese police agents questioned this witness
repeatedly about the activities of the defendant,
about what the defendant did, her visits, who she
visited, who visited her and what the substance of
her conversations mth other persons were; that
neighbors and police agents termed the defendant
as a spy against Japan and held her up to public
hatred; that defendant kept her constantly in-
formed during said period of time of the progress
of the U. S. and Allied troops and told her that
anything she read in the Japanese papers or heard
on the radio to the contrary was nothing but false
Japanese propaganda; that she knows of her own
personal knowledge and observation that the de-
fendant took food to U. S. and Allied prisoners of
vs. United States of America 145
war held by the Japanese despite the fact that she
risked her own personal security in so doing.
14. Miss or Mrs. Yoneko Matsimaga, Tokyo,
Japan, a Japanese citizen, to testify that from
about August, 1944, to August, 1945, she was en-
gaged as a radio announcer at Radio Tokyo ; that
she had been acquainted with the defendant since
August, 1944, that her voice is almost identical in
timbre, tonal quality and frequency range as that
of the defendant and that she knows this fact to
be true of her own knowledge by virtue of tests
made thereon and that her voice frequently during
said period of time has been confused with and
been mistaken for that of the defendant; that she
knows of her own knowledge and observation that
the defendant never wrote any radio script and that
defendant was not competent to write such script;
that defendant never broadcast any news, news
commentaries or propaganda for the Japanese;
that defendant never committed any of the acts and
things alleged in the indictment.
15. Charles Yoshii, Tokyo, Japan, a Japanese
citizen, to testify that he was employed at Radio
Tokyo during 1943 to August, 1945; that he has
been acquainted with the defendant since about
August, 1943; to testify to the nature, time, hour,
and character of the Zero Hour radio program
during said period ; the names of the persons par-
tieii)ating therein, including the males and females
and the nature, extent and character of the partici-
pation of each; that the defendant never wrote or
146 Iva Ikuko Toguri D' Aquino
composed any radio script of any character what-
ever and had neither the training nor the ability
to write radio script; the nature, character, extent
and time and duties of defendant's employment;
that defendant never broadcast or uttered any state-
ment or did any of the unlawful things charged in
the indictment and that ^he never broadcast any
news, news commentaries or propaganda for the
Japanese and never uttered any statement or broad-
cast any statement derogatory to the U. S. and its
allies or to the U. S. and allied cause and never
uttered any statement or broadcast any statement
in anywise favorable to Japan or its war effort.
16. Miss Foumy Saisho, Nippon Times, Tokyo,
Japan, a Japanese citizen, to testify that she was
a translator for Radio Tokyo from early 1943 to
Aug., 1945; that she has been acquainted with the
defendant since August, 1943 ; that she is acquainted
with all the U. S. and Allied prisoners of war who
were coerced into broadcasting for the Japanese
at Radio Tokyo during that time; to state the
names of each and every male and female w^ho
broadcast on the Zero Hour program, the nature,
contents and character of their broadcasts and to
distinguish the activities and employments of each
of those females from the defendant; to testify that
the defendant never wrote or composed any radio
script and that she was not qualified so to do ; that
the defendant never ad libbed on the radio and that
she never broadcast any news or propaganda for
the Japanese or any matter of thing that was favor-
vs. United States of America 147
able to the Japanese or against the United States
and its Allies; that the defendant never did any-
thing whatever to help Japan ; that in conversations
with the defendant during said period of time the
defendant stated to her that she was opposed to
Japan.
17. Mr. Hisashi Moriyama, Tokyo, Japan, a
Japanese citizen, and now a band leader in Tokyo ;
to testify that he has been acquainted with the de-
fendant since about June, 1944; that he was em-
ployed at Radio Tokyo at that time and until August
15, 1945; that he was acquainted with the writers
and composers of the radio script used on the Zero
Hour program; that the defendant never wrote or
composed any of that script or any other radio
script ; that he knows the nature, contents and char-
acter of all the radio script used on that program
and to testify thereto; that he was acquainted with
each of the females who broadcast on that program
and the nature and contents of their broadcasts and
the duties they performed ; that the defendant never
made any news or propaganda broadcasts for the
Japanese and never broadcast anything detrimental
to or against the United States and its Allies.
18. Mr. Katsuo Okada, Tokyo, Japan, a Japa-
nese citizen, to testify that he has been acquainted
with the defendant since about October, 1944, and
that he conversed with her on an average of once
l)er week from then until August 15, 1945, in Tokyo,
Japan; that the defendant on practically each of
148 Iva Ikuko Toguri D' Aquino
those occasions told him Japan would lose the war,
that anything he read in Japanese newspapers to
the contrary was false propaganda; that she re-
peatedly told him of U. S. and Allied successes in
the war; that the defendant at all times was loyal
to the United States and its Allies and opposed to
Japan.
19. Mr. Mugio Hattori, Tokyo, Japan, a Japa-
nese citizen, to testify that he visited the defendant
in Tokyo approximately once per month from July,
1941, to Dec. 8, 1941, and thereafter seven or eight
times in 1944, and up to August 15, 1945 ; that she
repeatedly informed him she was loyal to the United
States and its Allies and opposed to Japan, that the
United States would defeat Japan, that Japan was
the cause of the war and informed him that Japa-
nese reports of Japan's successes in the war were
false; that the United States and the Allies were
gaining and would win the war and that she hoped
the U. S. would win the war quickly; that he re-
peatedly informed the defendant that she should
not talk too much against Japan or she would be
jailed.
20. Mr. George Nakamoto, Tokyo, Japan, a
Japanese citizen, to testify that he has been
acquainted with the defendant since about Novem-
ber 1, 1943; that he formerly was in charge of the
Zero Hour program at Radio Tokyo from Novem-
ber, 1943, to the fall of 1945; that sometime about
November, 1943, he brought and delivered to Radio
Tokyo an order or command from the Japanese
vs. United States of America 149
Anny headquarters to Mr. Takano, then manager
of the business office of Radio Tokyo, ordering him
to force the defendant to take a radio voice test;
to testify to the purpose of said test and the con-
tents of said order and the maker of said order;
that said Takano coerced defendant into such a
test, and that defendant took the test under duress
and over her protests; to testify to the names of
the males and females who conducted the Zero Hour
radio program; how that program originated, and
its purpose, and that the U. S. and Allied prisoners
of war who were coerced into broadcasting by the
Japanese authorities converted the Zero Hour pro-
gram into a program designed and utilized to aid
the cause of the Allies by bolstering up the morale
of U. S. and Allied troops by playing lively Amer-
ican and European music and broadcasting mes-
sages of U. S. and Allied prisoners of war; to
testify to the nature and duties of defendant's occu-
pation during said period of time, the nature and
character of her employment, the hours and days
she worked and her absences therefrom; that de-
fendant never wrote or composed any radio script;
that defendant never did anything and never broad-
cast anything disloyal to the United States or its
Allies ; that the defendant was kept under close sur-
veillance by the Kempeitai and metropolitan police;
that the defendant was loyal to the cause of the
U. S. and its Allies and opposed to Japan.
21. Douglas MacArthur, Supreme Commander
Allied Powers, and General, U. S. Army, G. H. Q.,
150 Iva Ikuko Toguri D' Aquino
Tokyo, Japan, an American citizen, or his nominee,
to testify whether or not he or any military officer
under his command ordered or authorized the seiz-
ure of the defendant by U. S. troops on or about
September 5, 1945, and their detention and ques-
tioning of her on said date and on September 6,
1945, at the Yokohama New Grand Hotel in Yoko-
hama, Japan, and, if so, under what authority or
process; and also to testify whether or not any
written authority or process issued for such pur-
poses and, if so, the nature and contents thereof
and to have the same read into evidence in this
proceeding ;
And also to testify whether or not he, or any
military officer under his command, ordered or
authorized the arrest of the defendant by U. S.
troops on or about October 17, 1945, at her home
at No. 396 Ikejiri Machi, Setagaya-Ku, Tokyo,
Japan, her imprisonment from said date to Novem-
ber 16, 1945, in the Yokohama Prison, Yokohama,
Japan, and thereafter from November 16, 1945, to
October 25, 1946, in the Sugamo Prison, Tokyo,
Japan, on which latter date she was released and
restored to her liberty, and, if so, under what
authority or process was said arrest made, said
imprisonment inflicted upon her and her said re-
lease made, and also whether or not said arrest was
made upon any charge or charges preferred against
her and, if so, by whom and what was the nature
and contents thereof; whether or not she was given
any hearing or trial on any such charge or charges
vs. United States of America 151
and, if so, when and before what tribunal; and to
testify to what sentence or punishment was meted
out to her and upon what authority ; and to produce
or have produced and read into evidence in this
proceeding the records relating to the defendant's
said arrests, the charges preferred against her, if
any, the hearings or trial of defendant and sen-
tence or punishment imposed upon her, the said
two imprisonments and the releases of defendant
from said imprisonments.
22. Major General Charles Willoughby, U. S.
Army, Chief of the Counter Intelligence Corps,
IT. S. Army, GHQ., Tokyo, Japan, an American
citizen, or his nominee, to testify to the same facts
hereinabove set forth as being the testimony de-
fendant expects from General Douglas MacArthur,
U. S. Army, and to produce such records and read
them into evidence herein.
23. U. S. Army Officer in Charge of Sugamo
Prison, Tokyo, Japan, an American citizen, to
testify to the facts and records concerning the im-
prisonment of the defendant in said prison from
on or about November 16, 1945, to October 25, 1946 ;
the authority for said imprisonment and release
therefrom on October 25, 1946, the charges, if any,
preferred against her, the name of her accuser, if
any, whether or not she was accorded a hearing or
trial thereon and, if so, by whom and under what
authority; the process or authority under which
she there was confined for said period of time; the
nature and circumstances of her release from said
152 Iva Ikuko Toguri B' Aquino
imprisonment; and to produce the official records
of said prison relating to said incarceration and
release of the defendant and to read them into evi-
dence in this proceeding;
And also to testify to the facts and records re-
lating to the confinement of defendant in said prison
from on or about August 26, 1948, to September 3,
1948; the authority and process, if any, for said
confinement, and to read said records into evidence
in this proceeding.
And the same officer, if he is in charge of the
Yokohama Prison records from Oct. 17, 1948, to
Nov. 15, 1948, to testify to the facts covered in
Paragraph 22 hereof.
24. U. S. Army Officer in Charge of Yokohama
Prison, Yokohama, Japan, a U. S. citizen, to testify
to the records of said prison concerning the incar-
ceration of the defendant there from on or about
October 17, 1945, to on or about November 16, 1945 ;
to testify on what authority she was so incarcerated
for said period of time, to testify whether or not
any formal w^ritten or oral charges were preferred
against her or any accusation made against her out
of which said incarceration and commitment arose ;
the nature and contents of any such charge or accu-
sation ; who or what authority preferred such charge
against her; to testify whether or not defendant
was accorded any hearing or trial out of which said
commitment and imprisonment arose; and to pro-
duce the official records of said prison relating to
vs. United States of America 153
said incarceration and commitment of the defend-
ant and to read them into evidence in this proceed-
25. Father Desmoulins, Sophia University
Chapel, Tokyo, Japan, a citizen of Prance, to
testify that the defendant studied Catholicism and
received religious instruction from the Catholic
priesthood at Sophia University Chapel from Feb-
ruary, 1945, to the end of April, 1945 ; the days and
hours defendant there attended, and the time and
place defendant was married to Felipe J. d 'Aquino,
a Portuguese national and citizen.
26. Dr. Y. Amano, near Camp Drake, Tokyo,
Japan, a Japanese citizen, to testify he v^as defend-
ant's attending physician from July 1, 1941, to
August, 1945; to testify to defendant's medical his-
tory during said period of time and to her mental
and physical condition ; to show that defendant suf-
fered from beri beri and malnutrition in 1943, and
otitis media in 1944; to the loss of defendant's baby
in 1948; to conversations with her in 1943 to Aug.,
1945, in which she informed him that Japan was
in the wrong in starting the war and that Japan
would be defeated and that the U. S. would win;
that she was loyal and devoted to the U. S. and
Allied cause and was opposed to Japan; that she
informed him that newspaper and radio reports he
heard of Japanese war successes were false and
that the truth was that the U. S. and its Allies were
advancing successfully and would soon defeat
154 Iva Ikuko Toguri D' Aquino
Japan and that she hoped for a quick U. S. victory-
over Japan.
27. Dr. Fumi Amano, a Japanese citizen, wife
of Dr. Y. Amano, at his address, to testify to the
same facts above outlined as to Dr. Y. Amano.
28. Mrs. Miyeko Oki, nee Furuya, Tokyo,
Japan, a Japanese citizen, to testify she has been
acquainted with the defendant since about March,
1944, that she was employed during November,
1943, and to August 15, 1945, at Radio Tokyo,
where she saw and talked to defendant several times
per week; that the defendant never wrote or com-
posed any radio script and that she never broadcast
anything disloyal to the United States or anything
to aid the war efforts of Japan and that she never
committed any of the unlawful acts charged or re-
ferred to in the indictment.
29. Mr. Ken Oki, Tokyo, Japan, a Japanese
citizen, to testify that he was assistant manager of
the Zero Hour radio program at Radio Tokyo,
Japan, from about November 1, 1943, to the fall
of 1944 when he became manager thereof until
about August 15, 1945 ; that he has been acquainted
with the defendant since about November 1, 1943;
to testify to the names of the males and females
who broadcast on the Zero Hour program and to
the nature, contents and character of each of their
radio announcements; to testify to the nature and
character of defendant's employment at Radio
Tokyo, the hours and days she was present and
vs. United States of America 155
the days she was absent, the compensation she re-
ceived therefor; that the defendant never wrote or
composed any radio script whatever and that she
was not able so to do; that the defendant never
broadcast or uttered any statement against the
United States or its Allies or against the interests
of the U. S. or its Allies; that she wa^ loyal and
sympathetic to the IT. S. and Allied cause ; that she
never committed any of the unlawful acts alleged
in the indictment.
30. K. Uno, Tokyo, Japan, a Japanese citizen,
to testify that he was frequently at Radio Tokyo,
Tokyo, Japan, from November, 1943, to about Feb-
ruary, 1945; that he was acquainted with the de-
fendant during said period of time; that he knows
of his own knowledge and observation that the
defendant never wrote any radio script and never
said, uttered or broadcast any statement or state-
ments against the U. S. and its Allies or against the
U. S. and Allied cause; that she never committed
any of the unlawful acts specified or referred to in
the indictment; that the defendant was compelled
to accept her employment at Radio Tokyo under
duress and that she protested against her said em-
ployment but was coerced into it by Mr. Takano,
manager of the business office of Radio Tokyo, on
or about November, 1943.
31. Mr. Ken Ishii, Tokyo, Japan, a Japanese
citizen, to testify that he was employed at Radio
Tokyo, Japan, in 1944 ; that he has been acquainted
with the defendant since about January, 1944 ; ^^'hat
156 Iva Ikuko Toguri D' Aquino
while he was so employed he knows of his own
knowledge and observation that the defendant
neither wrote nor composed any radio script and
that she did not broadcast or do any of the unlaw-
ful acts alleged in the indictment.
32. Miss Mary Ishii, Tokyo, Japan, a British
citizen, sister of said Ken Ishii, to testify she was
employed at Radio Tokyo, Japan, from about Feb-
ruary, 1945, to about August 15, 1945; that she has
been acquainted with the defendant from about
February, 1945; that she saw the defendant almost
daily from then to August 15, 1945, and very fre-
quently talked to her; that the defendant never
wrote or composed any radio script and never said,
uttered or broadcast any news or propaganda for
the Japanese.
33. Chief of Police, Setagaya Ward, Tokyo,
Japan, a Japanese citizen, to testify that the rec-
ords of his department show several registrations
thereby by the defendant; to testify to the facts of
said registrations from the original records thereof
and to read the written registrations into evidence;
to testify to the purpose for which said registra-
tions were made and mider what authority they
were required to be made; and to testify that said
police department from July, 1941, to August, 1945,
investigated the defendant, her activities and move-
ments and kept her under constant surveillance and
to testify to the purpose and reasons therefor and
to testify that the defendant was regarded as being
vs. United States of America 157
dangerous to the security of Japan and as a spy
for the U. S., and to produce and read said records
into evidence in this action.
34. Chief of Police, Shiba Ward, Tokyo, Japan,
a Japanese citizen, to testify that the records of
his department show several registrations thereby
by the defendant; to testify to the facts of said
registrations from the original records thereof and
to read the written registrations into evidence; to
testify to the purpose for which said registrations
were made and under what authority they were
required to be made ; and to testify that said police
department from July, 1941, to August, 1945, in-
vestigated the defendant, her activities and move-
ments and kept her under constant surveillance
and to testify to the purpose and reasons therefor
and to testify that the defendant was regarded as
being dangerous to the security of Japan and as a
spy for the U. S., and to produce and read said
records into evidence in this action.
35. Chief of Police, Atsugi, Japan, a Japanese
citizen, to testify that the records of his department
show several registrations thereby by the defend-
ant ; to testify to the facts of said registrations from
the original records thereof and to read the written
registrations into evidence ; to testify to the purpose
for which said registrations were made and under
what authority they were required to be made ; and
to testify that said police department from July,
1941, to August, 1945, investigated the defendant,
her activities and movements and kept her under
158 Iva Ikuko Toguri D' Aquino
constant surveillance and to testify to the purpose
and reasons therefor and to testify that the defend-
ant was regarded as being dangerous to the security
of Japan and as a spy for the U. S., and to produce
and read said records into evidence in this action.
36. Chief of Metropolitan Police, Tokyo, Japan,
a Japanese citizen, to testify that the records of his
department show several registrations thereof by
the defendant; to testify to the facts of said regis-
trations from the original records thereof and to
read the written registrations into evidence; to
testify to the purpose for which said registrations
were made and under what authority they were
required to be made ; and to testify that said police
department from July, 1941, to August, 1945, in-
vestigated the defendant, her activities and move-
ments and kept her under constant surveillance
and to testify to the purpose and reasons therefor
and to testify that the defendant was regarded as
being dangerous to the security of Japan and as a
spy for the U. S., and to produce and read said
records into evidence iij this action.
37. Officer in Charge of the records of the Kem-
peitai, Tokyo, Japan, either a U. S. or a Japanese
citizen, to testify that the records of the Kempeitai
show that the Kempeitai constantly investigated
the history, activities and movements of the de-
fendant from July, 1941, to August, 1945, and that
it regarded the defendant as being a person dan-
gerous to the security of Japan and as being a spy
vs. United States of America 159
for the United States and kept her under continu-
ous surveillance during said period of time, and to
produce and read said records into evidence in this
action.
38. Mr. Hanamaki Tazaki, Tokyo, Japan, a
Japanese citizen, to testify that he was a liaison
agent between Japanese Army Headquarters and
Radio Tokyo between Aug., 1943, and Aug., 1945;
that, as such he was familiar with and knew the
person or persons who originated and conducted
the Zero Hour radio programs; to testify to the
jjersons, male and female, who broadcast on that
program, the nature, contents and character of
those broadcasts during the life of said program;
that said program was utilized by the U. S. and
Allied prisoners of war who broadcast thereon as
an instrument to serve the U. S. and Allied cause
by broadcasting lively American and European
musical records and reading messages of U. S. and
Allied prisoners of war held by the Japanese so
that the U. S. and Allied military authorities would
learn that they survived death and learn of their
whereabouts and that their relatives' morale would
be boosted by learning they were alive.
39. Charles C. Cousens, 7 Bapaune Road, Mos-
man, Sydney, N.S.W., Australia, a citizen of Great
Britain, to testify that he was a Major in the Aus-
tralian Army held as a prisoner of war by the
Japanese in Tokyo from early 1943 to Aug. 15,
1945; that he and some twenty-five (25) other U. S.
160 Iva Ikuko Toguri V Aquino
and Allied military and civilian personnel held as
prisoners of war by the Japanese at Bunka Prison
in Tokyo Bay, Tokyo, Japan, under duress and
threats against their lives were coerced into acting
as radio announcers and broadcasters at Radio
Tokyo, Japan; that he and other prisoners of war
so held under duress originated the Zero Hour pro-
gram on or about November, 1943, which was a
regular program thereon until Aug., 1945 ; that said
program was designed and used by said prisoners
of war for the purpose of aiding the U. S. and
Allied cause and so was used during the whole of
said period of time; that the music recordings
broadcast over that program were of classical,
semi-classical and popular American and European
types of music of lively and familiar types they
selected for the purpose of bolstering up the morale
of U. S. and Allied troops who picked up the same
in receivers and especially was this so because the
troops had no other source of such music available
to them; that the program was otherwise devoted
to the broadcasting of messages from U. S. and
Allied prisoners of war held by the Japanese to i
U. S. and Allied troops and civilians so that U. S. 1
military authorities would learn of their survival j
and whereabouts and the morale of their relatives 1
at the front and at home be heightened by the news
of their survival; that Mr. Takano, acting on Japa- |
nese Army orders compelled the defendant, under
duress and over her protests, to have a test made
vs. United States of America 16 1
of her voice at Radio Tokyo; that defendant was
compelled to accept the employment designated for
her by the Japanese authorities and accepted her
employment under duress and over her repeated
protests; that the defendant never wrote or com-
posed any radio script; that she never broadcast
any news, news commentaries or propaganda for
the Japanese and never served the interests of
Japan; that she never said, uttered or broadcast
any statement or statements derogatory to or
against the U. S. or its Allies or against the U. S.
and Allied cause; that the defendant never com-
mitted any of the unlawful acts alleged or referred
to in the indictment; that he talked to the defend-
ant almost daily from about November, 1943, to
about June, 1944, and almost daily the defendant
stated she was hoping the U. S. and its Allies would
soon defeat the Japanese and that the U. S. would
defeat Japan, that she was loyal to the U. S. and
its Allies and the U. S. and Allied cause; that the
defendant at risk of great personal danger to her-
self secretly conveyed food, medicine and clothing
to prisoners of war in need thereof; that the de-
fendant was constantly under surveillance by the
Kempeitai and metropolitan police.
40. John Holland, Hong Kong, China, a British
citizen, to testify that he was a prisoner of war
held by the Japanese in Tokyo in 1943 to 1945; that
he has been acquainted with the defendant since
about November, 1943; that he was present at the
162 Iva Ikuko Toguri D' Aquino
time and place Mr. Takano, then manager of the
business office of Eadio Tokyo, decided to order the
defendant to accept the employment he and others
had selected her for without her knowledge; that
when inf omied thereof by Mr. Takano the defend-
ant protested acceptance thereof and that there-
upon Mr. Takano threatened her and thereafter,
she, under duress and over her protests was com-
pelled to comply; that the defendant never wrote
any radio script; that she never committed any of
the unlawful acts charged or referred to in the
indictment.
41. The General Manager, a Japanese citizen,
or subordinate officer under him having charge of
the records of employment and compensation paid
employees, of Radio Tokyo, Tokyo, Japan, to pro-
duce and to testify from and to read into evidence
the records of said company showing the period of
time the defendant was employed by said company,
from 1943 to Aug., 1945, the days and hours she
worked there, the capacity in which she worked, the
days she absented herself therefrom; the rates of
pay she received therefor; the time cards filled out
by her and the original employment checks she re-
ceived during said time.
42. Mr. Hifumi, a Japanese citizen, whose first
name is unknown to affiant, but who was a Major
in the Japanese Army in 1943 to 1945 and a friend
of the above-mentioned Hanamaki Tazaki, and may
vs. United States of America 163
be located through him, to testify to the same facts
defendant expects to elicit as testimony of said
Hanamaki Tazaki.
43. Mr. Takabataki, a Japanese citizen, whose
first name is unknown to affiant, but who was em-
ployed in the Japanese Foreign Office, to testify to
the same facts defendant expects to elicit as testi-
mony of said Hanamaki Tazaki.
Affiant is informed and believes and therefore
alleges on such information and belief that each
of the foregoing named witnesses, together with
other witnesses in Japan who may be found to be
necessary and material witnesses for the defendant,
is ready, willing and able to come to San Francisco,
California, to testify in person on behalf of the
defendant at the trial herein provided his or her
travel and subsistence expenses and witness fees
will be defrayed, or to have his or her testimony
taken by deposition abroad at his or her place of
residence.
Affiant alleges that the failure or refusal of the
Court to authorize the production of the said wit-
nesses from abroad to testify in person for the de-
fendant at the trial or the failure of the Government
to authorize them to be produced for said purposes
at the expense of the Government will result in a
failure of justice and deprive her of a fair and im-
I)artial trial and of the right of obtain witnesses
in her favor and of the due process of law guar-
164 Iva Ikuko Toguri D' Aquino
anteed her by the provisions of the Sixth and Fifth
Amendments of the U. S. Constitution.
/s/ IVA IKUKO TOGURI
D AQUINO,
Affiant.
Subscribed and sworn to before me this 1st day
of March, 1949.
[Seal] /s/ C. W. CALBEEATH,
Clerk, U. S. District Court, Northern District of
California.
Receipt of copy acknowledged.
[Endorsed] : Piled March 1, 1949.
District Court of the United States, Northern
District of California, Southern Division
At A Stated Term of the District Court of the
United States for the Northern District of Califor-
nia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Monday, the 14th day of March, in the year of
our Lord one thousand nine hundred and forty-nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause.]
ORDER
(Minute order that motion to take certain
depositions be granted and that remaining
motions be denied.)
vs. United States of America 165
This case came on for hearing of motion for sub-
poena, motion to take depositions. Defendant was
present in custody of U.S. Marshal and with her
attorney, Wayne Collins, Esq., Hon. Frank J. Hen-
nessy, U. S. Atty., for U.S. After hearing the
arguments of the attorneys, it is Ordered that said
motion to take certain depositions be granted; and
that the remaining motions be denied, in accordance
with a signed order this day filed. Ordered defend-
ant remanded to custody of U.S. Marshal.
[Title of District Court and Cause.]
Order Denying Seven Motions and Granting De-
fendant's Motion For Taking Depositions
Abroad and Authorizing Expense Thereof and
Travel and Subsistence Expenses of Defend-
ant's Attorney For Attendance At Such Exam-
inations
The eight consecutive motions of the defendant
filed herein on March 1, 1949, coming on regularly
to be heard the 14th day of March, 1949, Wayne M.
Collins, Esq., appearing for the defendant and
orally arguing in favor of the grant of each of said
motions and Frank J. Hennessy, U.S. Attorney
appearing for the plaintiff and arguing in opposi-
tion thereto, and the matter thereupon being sub-
mitted to the Court for decision and the matter
being duly considered by the Court,
166 Iva Ikuko Toguri D' Aquino
It Is Ordered, as follows :
(1) That defendant's Motion No. I entitled
^^ Motion For Order Authorizing And Directing
Issuance of Subpoenas Requiring Attendance of
Witnesses In A Foreign Country At The Trial
Herein At The Expense Of The Government And
For Service Thereof be and the same hereby is
denied ;
(2) That defendant's Motion No. II entitled
^* Motion To Dismiss The Indictment" be and the
same hereby is denied;
(3) That defendant's Motion No. Ill entitled
'^Motion That Court Conduct Part of Trial By Jury
In Tokyo, Japan, Hong Kong, China, and Sydney,
Australia," be and the same hereby is denied.
(4) That defendant's Motion No. IV entitled
^'Motion To Dismiss The Indictment," be and the
same hereby is denied.
(5) That defendant's Motion No. V entited
''Motion To Postpone Trial Of The Cause And
Either To Discharge Defendant From Custody Or
To Admit Her To Bail Pending Such Time As The
Government Provides For The Production Of De-
fendant's Witnesses From Abroad To Testify In
Person At The Trial Herein," be and the same
hereby is denied.
(6) That defendant's Motion No. VI entitled
''Motion To Dismiss The Indictment," be and the
same hereby is denied.
vs. United States of America 167
(7) However, as to Motion No. VII entitled
** Motion For Order Authorizing And Directing
Issuance Of Subpoenas Requiring Attendance Of
Witnesses Abroad At The Taking Of Their Deposi-
tions And Providing For The Taking Of Deposi-
tions Of Foreigners and Citizens Abroad, At The
Expense Of The Government, Including The Ex-
penses Of Travel And Subsistence Of Defendant's
Attorney And Investigator-Interpreter For Inter-
viewing Witnesses And For Attendance At The
Examinations," the Court finds that the defendant
is indigent and does not have sufficient means and
is actually unable to pay the fees of her witnesses
for her defense and cannot bear the expense of the
taking of the depositions of her witnesses in Japan
and Hong Kong; that the witnesses named in her
motion and affidavit in support thereof are material
and necessary witnesses for her and that their tes-
timony and evidence is necessary and material for
her defense at the trial of the cause ; that she cannot
safely proceed to trial of said action without the
testimony of said witnesses and the production of
'the documentary evidence mentioned in said affi-
davit; that she cannot bear the expenses of travel
and subsistence of her attorney for attendance at
the said examinations, that is, at the taking of said
depositions, and that the plaintiif consents that the
depositions of defendant's witnesses in Japan and
Hong Kong there may be taken before any person,
at any time or place, upon any notice, and in any
manner, commencing on or about April 3, 1949, and
continuing thereafter daily until completed, as coun-
168 Iva Ikuko Toguri V Aquino
sel for the respective parties, or their associates or
representative attorneys there shall agree, and
counsel for the parties having informed the Court
they will execute and file herein a written stipulation
thereto within a reasonable time, and the Court find-
ing and concluding that the failure or refusal of
the Court to order or authorize the taking of said
depositions at the expense of the United States
Government and the payment of her counsel's travel
and subsistence expenses to attend the taking of
said depositions at the expense of the United States
Government would deprive the defendant of sub-
stantial rights and would result in a failure of
justice and that, therefore, defendant's said Motion
No. VII should be granted, save and except her
request for travel and subsistence expenses for an
investigator-interpreter to accompany her counsel
to assist him in locating witnesses, obtaining their
statements and acting as interpreter and translator
for him from English into Japanese and Japanese
into English in connection therewith which is de-
nied,
Wherefore It Is Ordered as follows :
(a) That the oral depositions of each of the wit-
nesses for the defendant named in said motion, or
such of them as the defendant or her counsel may
deem necessary, together with the oral depositions
of such other witnesses for the defendant as her
counsel may wish to take in Japan and Hong Kong
there shall be taken before any person, at any time
or place, upon any notice, and in any manner.
vs. United States of America 169
commencing on or about April 3, 1949, and con-
tinuing thereafter daily until completed in Japan
and Hong Kong, as counsel for the defendant and
counsel for the plaintiff, or their associate or repre-
sentative attorneys there shall agree upon;
(b) That the expense of the taking of said de-
positions, estimated not to exceed the sum of Three
Thousand ($3,000.00) Dollars, shall be paid by the
United States Government.
(c) That the expenses of travel, estimated not
to exceed the sum of One Thousand Eight Hundred
($1,800.00) Dollars, together with subsistence ex-
penses of Ten Dollars per day for a period of time
estimated not to exceed Forty Five (45) days,
amounting in the aggregate to a sum estimated not
to exceed Four Hundred Fifty ($450.00) Dollars,
of the defendant's attorney, Theodore Tamba, Esq.,
associated with Wayne M. Collins, Esq., for attend-
ing said examinations, that is, the taking of said
depositions, shall be paid by the United States Gov-
ernment.
(8) That defendant's Motion No. VIII entitled
** Motion To Dismiss Indictment" be and the same
hereby is denied.
Dated: March 15th, 1949.
/s/ MICHAEL J. ROCHE,
United States District Judge.
Receipt of a copy of the above Order is hereby
admitted this 15th day of March, 1949.
/s/ FRANK J. HENNESSY,
U. S. Attorney.
170 Iva Ikuko Toguri D^ Aquino
29 SF WA/CT-AO/ PBA
1949 Mar 23 p.m. 3 :06
Teletype Division
Washington 3-23-49 506P
C. W. Calbreath, Clerk U.S. District Court SF
Re case Tokyo Rose, defendant's attorney Theo-
dore Tamba authorized by court to travel to Japan
and Hong Kong please deliver to him from your
book necessary government transportation requests
signed by you as issuing officer covering travel in
accordance with court order of March 15, 1949.
ELMORE WHITEHURST.
15 1949
RVS 514P
San Francisco, Calif.
March 25, 1949.
Received from C. W. Calbreath, Clerk U.S. Dis-
trict Court, Government Travel request USca 30578
for air transportation from San Francisco, Cali-
fornia to Hong Kong, China and return, in the sum
of $1,306.80.
/s/ THEODORE TAMBA.
[Endorsed] : Filed March 15, 1949.
vs. United States of America 171
[Title of District Court and Cause.]
STIPULATION TO TAKING ORAL
DESIGNATIONS ABROAD
It is stipulated between the parties hereto that
the oral depositions of each and all of the defend-
ant's witnesses mentioned in her motion for the
production of said witnesses at the trial herein and
for the taking of their depositions, which motions
were filed herein on March 1, 1949, together with
the oral depositions of any other witnesses who
reside abroad in Japan, or Hong Kong, China, who
hereafter may be designated by the defendant or
her attorney, Wayne M. Collins, or his associate,
Theodore Tamba, Esq., as such a witness, may be
taken before any consular officer of the United
States in Japan or Hong Kong, China, or before
any other person or persons to be mutually decided
on between the respective attorneys for the parties
hereto while they are in Japan or Hong Kong for
said purpose commencing on or about April 3, 1949,
and continuing thereafter until completed, and that
such be taken in any manner upon which they there
may agree, provided how^ever, that all objections of
each of the parties hereto, including objections to
the form of the questions propounded to witnesses,
and to relevancy, materiality and competency
thereof, and the defendant's objections to the use
of the depositions or any part of the depositions
172 Iva Ikuko Toguri V Aquino
by the plaintiff on the plaintiff's case in chief, shall
be reserved to the time of trial herein.
Dated: March 17, 1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
/s/ FRANK J. HENNESSY,
U.S. Attorney.
/s/ TOM DeWOLPE,
Sp. Asst. to the Attorney
General.
So Ordered: March 22nd, 1949.
/s/ MICHAEL J. ROCHE,
United States District Judge.
[Endorsed] : Filed March 22, 1949.
[Title of District Court and Cause.]
NOTICE
To Frank J. Hennessy, United States Attorney, and
To Tom DeWolfe, Special Assistant to the At-
torney General, Attorneys for the Plaintiff:
You and each of you will please take notice that
on Monday, the 11th day of April, 1949, at the
Courtroom of the above-entitled Court, 3rd Floor,
Post Office Building, 7th and Mission Streets, San
Francisco, California, at the hour of 10 o'clock
A. M. of said day, or so soon thereafter as counsel
can be heard, the defendant will bring on for hear-
ing the within motion.
Dated: April 5, 1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
vs. United States of America 173
[Title of District Court and Cause.]
MOTION FOR LISTS OF WITNESSES AND
VENIREMEN
The defendant moves this Court, under Title 18
USCA, Sec. 3432, (formerly Sec. 562), for the order
of this Court forthwith requiring the plaintiff or its
counsel to supply the defendant with a list of the
names of the witnesses to be produced on the trial
for jjroving the indictment herein together mth a
statement giving the place of abode of each such
witness and also for its order requiring the plaintiff
or its counsel to supply the defendant at least three
entire days before the trial with a list of the venire-
men stating the abode of each venireman.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Points and Authorities In Support Of Motion
Title 18 USCA, Sec. 3432 (formerly Sec. 562)
reads as follows:
*'A person charged with treason or other capital
offense shall at least three entire days before com-
mencement of trial be furnished with a copy of the
indictment and a list of the veniremen, and of the
witnesses to be produced on the trial for proving
the indictment, stating the place of abode of each
venireman and witness. '^
174 Iva Ikuko Toguri D' Aquino
The provision is mandatory. See Logan v. U. S.
144 U. S. 263, 304, and McNabb v. U. S. (CCA-
Tenn), 123 Fed. 2d. 848, 853, rev. on other grounds,
318 U. S. 332. The purpose of the statute is to en-
able a defendant to investigate the jurors and the
witnesses.
Inasmuch as the majority of the plaintiff's wit-
nesses who appeared for the plaintiff for grand
jury purposes appear to have been brought by the
Government from Japan and elsewhere outside the
geographical jurisdiction of this Court it is to be
presumed such witnesses, and others, will be pro-
duced as plaintiff's witnesses at the trial herein. In-
asmuch as said witnesses are outside this judicial
district and their names and places of abode have
not been revealed to the defendant it will take de-
fendant's counsel more than three days preceding
the commencement of the trial to conduct an in-
vestigation of such witnesses abroad and outside
the jurisdiction of this court.
Respectfully submitted,
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Receipt of copy acknowledged.
[Endorsed] : Filed April 5, 1949.
vs. United States of America 175
[Title of District Court and Cause.]
NOTICE
To Frank J. Hennessy, United States Attorney, and
To Tom DeWolfe, Special Assistant To the
Attorney General, Attorneys For the Plaintiff :
You and each of you will please take notice that
on Monday, the 11th day of April, 1949, at the
Courtroom of the above-entitled Court, 3rd Floor,
Post Office Building, 7th and Mission Streets, San
Francisco, California, at the hour of 10 o'clock
A. M. of said day, or so soon thereafter as counsel
can be heard, the defendant will bring on for hear-
ing the within motion.
Dated: April 5, 1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Title of District Court and Cause.]
I.
MOTION FOR ORDER AUTHORIZING AND
DIRECTINC ISSUANCE OF SERVICE OF
SUBPOENAS REQUIRING ATTEND-
ANCE OF WITNESSES AT THE TRIAL
HEREIN AT THE EXPENSE OF THE
GOVERNMENT
The defendant, Iva Ikuko Toguri d 'Aquino, moves
the Court for its order authorizing and directing
the issuance and service of subpoenas requiring the
176 Iva Ikuko Toguri D^ Aquino
attendance of the hereinafter named witnesses, re-
siding at the places hereinafter set forth, at the
trial herein at the expense of the plaintiff, the U. S.
Government.
The names, addresses and places of residence of
the said witnesses are as follows:
1. George H. Henshaw, 2025 Benedict Canyon
Drive, Beverly Hills, California.
2. Chiyeko Ito, 3118 Blanchard Street, Los An-
geles 33, California.
3. Amy Masuda, Los Angeles, California.
4. James P. Whitten, Torrance, Los Angeles
County, California.
5. Martin Pray, 962 Ackerman Avenue, Syra-
cuse 10, New York State.
6. May JE. Hagedorn, 4211 Olive Drive, Everett,
Washington.
7. Norman Reyes, 1611 Eastland Avenue, Nash-
ville, Tenn.
8. Mrs. Norman Reyes, 1611 Eastland Avenue,
Nashville, Tenn.
9. John E. Tunnicliffe, Route 4, Box 233, Grants
Pass, Oregon.
10. Mark L. Streeter, 1008 Cassia Street, Idaho
Falls, Idaho.
11. John David Provo, Address is believed to be
at a U. S. military camp in Texas or Maryland.
vs. United States of America 177
12. Major Wallace E. Ince, Presidio, San Fran-
cisco, California.
This motion is made upon the ground that each
of the named witnesses is a necessary and material
witness for the defendant on the trial of said action
and a witness whose testimony is necesary and ma-
terial to the defendant in her defense to said action.
The facts to which each of the said witnesses is
expected to testify and the materiality of that tes-
timony is set forth in the affidavit of the defendant
filed in support of this motion which is incorporated
herein by reference for said purpose.
The defendant cannot safely proceed to trial of
said action without the production of the person
of each of said witnesses in court at the trial herein
to testify in person so that the individual testimony,
attitude and demeanor of each can be observed,
considered and weighed by the Court and the jury.
This motion is also made upon the ground that
the defendant is an indigent person and does not
have sufficient means and is actually unable to pay
the fees for the issuance and service of said sub-
poenas for said witnesses and is actually unable to
pay the costs of transportation of said witnesses
to attend the said trial of the action. Each of said
witnesses is ready, willing and able to attend the
trial and testify on behalf of the defendant in the
event he or she is served with a subpoena and is
paid the necessary witness fees and transportation
expenses.
The failure or refusal of the Court to order or
authorize the issuance and service of said subpoenas
178 Iva Ikuko Toguri D' Aquino
and the production of said witnesses at the trial
herein at the expense of the Government will result
in a failure of justice and deprive the defendant
of her substantial constitutional and statutory rights
to a fair and impartial trial by jury and to obtain
witnesses in her favor, in violation of the provisions
of the Sixth Amendment and the due process of
law guaranty of the Fifth Amendment of the Con-
stitution.
This motion will be made and based upon the
notice of this motion, said motion, affidavit in sup-
port thereof, and upon all the records, pleadings,
files, court orders and documents herein, and upon
the similar motion heretofore made herein for like
service of subpoenas and for the taking of deposi-
tions filed herein on March 1, 1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Points and Authorities
Rules 17 and 26, Rules of Criminal Procedure.
Fifth Amendment, U. S. Constitution.
Sixth Amendment, U. S. Constitution.
Title 18 USCA, Sec. 3005.
Respectfully submitted,
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
vs. United States of America 179
Affidavit In Support Of Motion
Northern District of California,
State of California,
City and County of San Francisco — ss.
Iva Ikuko Toguri d 'Aquino being first duly sworn,
deposes and says: that she is the defendant in the
above-entitled action and is detained under process
of this Court, without bail, in San Francisco County
Jail No. 3, Dunbar and Washington Streets, San
Francisco, California; that she is an adult person
over the age of twenty-one (21) years; that ever
since on or about July 25, 1941, she has continuously
resided in Tokyo, Japan, where, on April 19, 1945,
she was lawfully united in marriage to one, Felipe
J. d Aquino, who then and ever since his birth has
been and still is a national and citizen of Portugal
residing in Tokyo, Japan; that she thereby and
thereon, pursuant to the law of Portugal, as also
the law of Japan, as also by the law of all other
civilized nations and by international law, became
and ever since then continuously has been and now
is a national and citizen of Portugal and in 1945
was formally naturalized as a Portuguese national
by said marriage and by formal registration of said
marriage as such a citizen of Portugal at the office
of the Consul of Portugal at Tokyo, Japan; that
ever since her said marriage she has resided at No.
396 Ikejiri Machi, Setagaya-Ku, Tokyo, Japan, with
her said husband.
180 Iva Ikuko Toguri D' Aquino
On August 26, 1948, defendant was arrested by
agents of the United States, acting under orders of
the Attorney General of the United States, and
thereupon imprisoned in the Sugamo Prison, Tokyo,
Japan, and thereafter was forcibly taken aboard
the S. S. General F. R. Hodges, a U. S. transport
vessel on which she was brought to San Francisco,
California, on September 25, 1948, and while said
vessel was in progress of docking at said port she
w^as seized by agents of the U. S. Federal Bureau
of Investigation upon a purported complaint filed
in this Court on September 25, 1948, was brought
before the U. S. Commissioner in this District and
thereafter w^as indicted in this cause which is now
pending in this court.
The defendant is an indigent; aside from used
clothing and a few personal effects, the reasonable
value of which does not exceed Twenty Five ($25.00)
Dollars, she possesses the following assets only, viz.,
the equivalent of the sum of approximately One
Hundred ($100.00) Dollars on deposit in the Postal
Savings Bank in Tokyo, jointly with her husband
in Tokyo, Japan, household furniture, dishes, trunk,
sewing machine and utensils of the reasonable value
of One Hundred ($100.00) Dollars, and a remote
claim or right, subservient to the right of the Attor-
ney General as the Alien Property Custodian, in
and to certain real property situated in Los Angeles
County, California, described as follows, to-wit :
Lots 42 and 57 of the South Gate Tract in the
Rancho Tajauta, as per map recorded in Book 13,
vs. United States of America 181
Pages 14 and 15 of Maps in the office of the County
Recorder of said County, and portion of the 538.28
acre track of land allotted to Jose Maria Abila in
the partition of Rancho Tajauta, Case number 1200
of the 17th Judicial District Court in the County of
Los Angeles.
Which said property she is informed and believes
has an approximate market value of Three Thou-
sand Five Hundred ($3,500.00) Dollars, the interest
of the defendant therein, however, being at most a
disputable claim and hence of substantially no value
whatever to her.
By reason of her said poverty and indigency the
defendant does not have sufficient means and is ac-
tually unable to bear the expense of producing her
witnesses, hereinafter named, or any of them, to
testify in person in her defense at the trial herein,
or to bear the expense of their travel, subsistence
and witness fees for attending the trial herein or
to have issued and served upon them subpoenas
requiring them to appear and testify at the trial
herein.
That each of the witnesses, hereinafter named, is
a necessary and material witness for the defendant
on the trial of said action and the testimony of each
is necessary and material to the defendant in her
defense of said indictment.
I That the defendant cannot safely proceed to a
! trial of said action without the testimony of said
; witnesses.
182 Iva Ikuko Toguri D ^Aquino
The witnesses whose testimony is necessary and
material to be given in person at the trial herein,
their places of residence, their nationalities and
citizenships which are unknown to defendant but
which she believes to be as hereinafter set forth,
and the material and necessary testimony they are
expected to give, in substance and effect, are as
follows :
1. George H. Henshaw, 2025 Benedict Canyon
Drive, Beverly Hills, California, a U. S. citizen, to
testify that he was an ensign in the U. S. Navy
who from 1942 to Aug. 15, 1945, was held as a
prisoner of war by the Japanese at Tokyo, Japan;
that he saw the defendant in June or July of 1944
in Tokyo and during said time was acquainted with,
saw and conversed with various Allied officers and
personnel held prisoners of war by the Japanese and
who, under duress,; were compelled to w^ork at Radio
Tokyo, Japan; that although all of said prisoners
of war were held under coercion and duress they,
nevertheless, did not serve the purposes of their
oppressors but did their best to aid and comfort
the U. S. and Allied cause; that the defendant did
not compose any radio script; and that the Zero
Hour program of Radio Tokyo in nowise served the
purposes of the Japanese but was designed and con-
ducted by the U. S. and Allied prisoners to aid the
U. S. and Allied cause.
2. Chiyeko Ito, 3118 Blanchard Street, Los An-
geles 33, California, a U. S. citizen, to testify that
vs. United States of America 183
she sailed to Japan in 1941 on the same boat as the
defendant ; that she thereafter was employed by the
Domei News Agency in Tokyo; that she corre-
sponded with the defendant in Japan between Dec.
7, 1941, and Aug. 15, 1945, and frequently saw and
conversed with her between Nov. 1, 1943, and Aug.
15, 1945; that during said time the defendant ex-
pressed her loyalty to the U. S. and Allied cause and
her confidence that the U. S. and its Allies were in
the right and would win the w^ar; that the defend-
ant was kept under constant surveillance by the
Japanese police authorities.
3. Amy Masuda, Los Angeles, California, a U. S.
citizen, to testify that between Nov. 1, 1943, and
Aug. 15, 1945, she was employed as a typist at Radio
Tokyo, in Tokyo, Japan; that she was acquainted
with the defendant during said period and saw her
frequently and observed her at work; that the de-
fendant never wrote or composed any radio script;
that the defendant was compelled by Mr. Takano
of Radio Tokyo to have a voice test made; that
Kempeitai agents were at Radio Tokyo and that
defendant and all the U. S. and Allied prisoners of
war there forced to labor were held in duress by
the Japanese and were in fear of their lives.
4. James P. Whitten, Torrance, Los Angeles
County, California, a U. S. citizen, to testify that
from about Nov. 1, 1943, to Aug. 15, 1945, he was
184 Iva Ikuko Toguri D' Aquino
a U. S. naval officer and stationed at various U. S.
naval stations and on various U. S. naval vessels in
Southwestern Pacific Ocean areas; that from about
Nov. 1, 1943, to Aug. 15, 1945, he daily listened to
and monitored the radio broadcasts from Radio
Tokyo, Tokyo, including the broadcasts of the Zero
Hour program emanating therefrom ; that no female
voice on the Zero Hour program broadcast any
propaganda for the Japanese or any matter or thing
against the U. S. or its Allies ; that the female voices
thereon broadcast introductions to musical records
played on said program and that this was limited
to statements of the types of musical recordings, the
composers thereof, the orchestras or soloists thereon
and that the said introductions and musical record-
ings were of a lively nature that bolstered up the
morale of U. S. and Allied listeners within listening
range.
5. Martin Pray, 962 Ackerman Avenue, Syra-
cuse 10, New York State, a U. S. citizen, to testify
that he was a Sergeant in the U. S. Army stationed
at Sugamo Prison, Tokyo, from about Nov. 16, 1945,
to about Oct. 6, 1946; that he saw the defendant
there almost daily during said period of time ; that
the defendant there was treated by the U. S. mili-
tary and civil authorities as not being a U. S. citizen
but as being a foreign national and was denied the
privileges accorded citizen prisoners.
6. May E. Hagedorn, 4211 Olive Drive, Everett,
Washington, a U. S. citizen, to testify that from
vs. United States of America 185
June 26, 1943, to Aug. 14, 1945, she was engaged
as a civilian radio interceptor of shortwave radio
broadcasts from Radio, Tokyo, Japan, and moni-
tored the war prisoner's programs thereon, includ-
ing the Zero Hour program thereon ; that no female
announcer broadcasting therefrom at any time dur-
ing said period broadcast any propaganda for the
Japanese or any news broadcast or commentaries
or did any ad libbing thereon ; that the prisoner of
war messages broadcast thereon were restricted to
announcements of the names of U. S. and Allied
prisoners of war captured and held by the Japanese,
their whereabouts and conditions; that the musical
recordings announced by each of the female voices
thereon were lively American and European classi-
cal, semi-classical and popular types ; that no unlaw-
ful announcements against the U. S. or its Allies
and no announcements in favor of the Japanese
were made by any of the female voices thereon.
7. Norman Reyes, 1611 Eastland Avenue, Nash-
ville, Term., a Philippine national lawfully admitted
to and residing in the United States, to testify that
he was a Lieutenant in the U. S. Army from some-
time in 1942 to Aug. 15, 1945 ; that he was captured
by the Japanese and held as a prisoner of w^ar by
them from sometime in 1942 to Aug. 15, 1945; that
he and many other U. S. and Allied military, naval
and marine officers and civilian personnel w^ere held
under coercion and duress by the Japanese after
being taken prisoner by the Japanese; that he was
held by the Japanese in Tokyo; that from about
186 Iva Ikuko Toguri V Aquino
Nov. 1, 1943, to Aug. 15, 1945, while he so was held
under duress he almost daily saw and talked to the
defendant and observed her in the performance of
her employment; that the defendant during all of
said period was loyal and devoted to the U. S. and
Allied cause and that he and other prisoners of war
held by the Japanese observed and knew of her said
loyalty ; that the defendant never wrote or composed
any radio script of any nature whatever; that the
defendant never announced or broadcast any propa-
ganda for the Japanese; that she never announced
or broadcast any news or news items for the Japa-
nese; that she never committed any unlawful act
against the U. S. or its Allies ; that she never served
any purpose of the Japanese; that she aided and
comforted the U. S. and its Allies and U. S. and
Allied prisoners of war held by the Japanese by
secretly conveying to them news of U. S. and Allied
military and naval successes against Japan for the
purpose of bolstering up their morale and that her
aid and comfort did bolster up their morale; that
she secretly conveyed to said prisoners of war
tobacco, food, medicine and other needed supplies
for the purpose of aiding the U. S. and its Allies.
8. Mrs. Norman Reyes, 1611 Eastland Avenue,
Nashville, Tenn., the wife of Norman Reyes above
mentioned, and a Philippine national residing in the
U. S., to testify that between Nov. 1, 1943, and Aug.
15, 1945, she was frequently present at the office
of Radio Tokyo in Tokyo, Japan ; that she then was
acquainted with the defendant and saw her fre-
vs. United States of America 187
quently; that the defendant never wrote any radio
script and that she never broadcast or announced
via radio any propaganda or news for the Japanese ;
that all the U. S. and Allied prisoners of war who
there, under coercion, intimidation and duress and
in fear of their lives, were forced to labor by the
Japanese did their utmost to defeat the purpose of
their Jai)anese oppressors and were successful in
achieving that result; that the Zero Hour program
was restricted to reading of prisoner of war mes-
sages to U. S. and Allied troops to give their where-
abouts and to bolster up the morale of the U . S. and
Allied listeners and to the playing of familiar lively
classical, semi-classical and popular American and
European music for the pleasure of U. S. and Allied
troops.
9. John E. Tunnicliffe, Route 4, Box 233, Grants
Pass, Oregon, a U. S. citizen, to testify that he was
held as a U. S. civilian prisoner of war by the Japa-
nese from 1942 to Aug. 15, 1945; that from about
Nov. 1, 1943, to Aug. 15, 1945, he was held as such a
prisoner in Tokyo, Japan; that he, along with a
number of other U. S. and Allied prisoners of war
were compelled, under threats against their lives, to
work at forced occupations by their Japanese cap-
tors; that agents of the Japanese secret police, the
thought-control police termed the Kempeitai were
maintained at Radio Tokyo to hold the said prison-
ers of war under constant coercion; that they and
civilian aliens there forced to labor were held under
duress, that the Zero Hour program in nowise aided
188 Iva Ikuko Toguri B' Aquino
the Japanese but, on the contrary, was designed by
the prisoners of war in charge thereof to aid the
U. S. and Allied cause by bolstering up U. S. and
Allied morale by broadcasting prisoner of war mes-
sages to Allied troops and lively music to give
pleasure to Allied troops.
10. Mark L. Streeter, 1008 Cassia Street, Idaho
Falls, Idaho, a U. S. citizen, to testify that from
sometime in 1942 to about August 15, 1945, he was
held as an American prisoner of war by the Japa-
nese under duress in Tokyo, Japan ; that he became
acquainted with the defendant about Nov., 1943;
that he saw her almost daily from said time to Aug.
15, 1945, at Radio Tokyo, and thereafter, over a
period of approximately five months' time; that
during said periods of time he conversed with the
defendant ; that he knows of his own knowledge
and observation that the defendant during all of
said times was loyal and devoted to the U. S. and
its Allies and the U. S. and Allied cause; that the
defendant during said periods of time deliberately
concealed from the Japanese authorities informa-
tion concerning the activities of U. S. and Allied
prisoners of war which said activities were taken
by said prisoners against the Japanese authorities
and government; that the defendant continuously ,
aided and comforted U. S. and Allied prisoners of j
war by secretly conveying to them news of U. S.
and Allied military and naval successes for the |
purpose of bolstering up their morale; that, at |
vs. United States of America 189
great personal risk, she secretly delivered to said
prisoners of war tobacco, food, medicine and blank-
ets; that he knows of his own knowledge that the
defendant never composed or wrote any radio script
whatever for the Japanese or their government;
that the defendant never at any time whatever said,
uttered or broadcast any propaganda or news items
whatever, by radio or otherwise, for the Japanese;
that the defendant never committed any overt or
hostile act against the U. S. or any of its Allies but
that, on the contrary, she aided and comforted the
U. S. and its Allies; that during said times the
defendant and many U. S. and Allied prisoners of
war were held by the Japanese under duress and
intimidation and were in fear for their own per-
sonal security.
11. John David Provo, whose address is be-
lieved to be at a U. S. Military Camp in Texas or
Maryland, a U. S. citizen, to testify that he was
held as a U. S. prisoner of war by the Japanese
, from 1942 to about Aug. 15, 1945, in Tokyo; that
during said period of time he was intimidated,
coerced and kept under constant duress by the
Japanese; that during said period of time he fre-
' quently saw the defendant in Tokyo at her place
of employment and observed her at her employment
and knows the nature thereof and that the defend-
' ant neither wrote any radio script nor committed
any overt or any other unlawful acts against the
U. S. or its Allies; that from his own knowledge
190 Iva Ikuko Toguri V Aquino
and observation the defendant at all of said times
was loyal and devoted to the U. S, and Allied cause
and that she actively aided and comforted U. S. and
Allied military, naval and marine officers and
civilian personnel held prisoners of war by the
Japanese by secretly conveying to them news of
U. S. and Allied military and naval successes to
bolster up their spirits and morale and by deliver-
ing to them tobacco, food and blankets of which
they were in dire need.
12. Major Wallace E. Ince, also known as Ted
Wallace Ince, Presidio, San Francisco, California,
a U. S. citizen, to testify that from sometime in
1942 to Aug. 15, 1945, he was a U. S. prisoner of
war held by the Japanese under coercion and
duress; that from about Nov. 1, 1943, to sometime
in the spring of 1945, while he was so held by the
Japanese in Tokyo, Japan, he saw and talked to
the defendant almost daily ; that from conversations
with her and from observing her he was aware that
she was loyal and devoted to the U. S. and its Allies
and to the cause of the U. S. and its Allies; that
during said time he observed her at work and knows
of his own knowledge that she never wrote or com-
posed any radio script of any nature whatever and
that she did not make any radio announcements or
broadcasts of any news, news commentaries or
propaganda for the Japanese government, nation
or any of its agencies, citizens or subjects, or of
any matter or thing favorable to any of them; that
she did not announce or broadcast any statement
vs. United States of America 191
or thing against the U. S. or its Allies; that she
aided and comforted U. S. and Allied prisoners of
war during said period by secretly conveying to
them news of Allied military, air force and naval
successes for the purpose of aiding and bolstering
up their morale which purpose it had in fact and
that she secretly, at great personal risk to herself,
delivered to U. S. and Allied prisoners of w^ar, held
under duress by the Japanese, tobacco, food and
supplies in which they were of dire need for the
purpose of aiding and comforting said prisoners
of war and that such things did bolster up their
morale and did aid and comfort them to defeat the
purposes of the Japanese authorities.
Aifiant alleges upon information and belief that
each of the foregoing named witnesses is ready,
willing and able to come to San Francisco to testify
in behalf of the defendant provided his or her travel
and subsistence expenses and witness fees will be
defrayed.
AfiSant alleges that the failure or refusal of the
Court to authorize the production of the said wit-
nesses to testify in person for the defendant at the
trial herein or the failure of the Government to
authorize subpoenas to be issued and served upon
them and said witnesses to be produced at the trial
herein for said purposes at the expense of the Gov-
ernment will result in a failure of justice and de-
prive her of a fair and impartial jury trial and of
her right to obtain witnesses in her favor and of
the due process of law guaranteed her by the pro-
192 Iva Ikuko Toguri D^ Aquino
visions of the Sixth and Fifth Amendments of the
U. S. Constitution.
/s/ IVA IKUKO TOGURI
D 'AQUINO,
Affiant.
Subscribed and sworn to before me this 5th day
of April, 1949.
[Seal] /s/ C. W. CALBREATH,
Clerk, U. S. District Court, Northern District of
California.
Receipt of copy acknowledged.
[Endorsed] : Filed April 5, 1949.
[Title of District Court and Cause.]
NOTICE
To Frank J. Hennessy, United States Attorney, and
to Tom DeWolfe, Special Assistant to the At-
torney General, Attorneys for the Plaintiff:
You and each of you will please take notice that
on Monday, the 25th day of April, 1949, at the
Courtroom of the above-entitled Court, 3rd Floor,
Post Office Building, 7th and Mission Streets, San
Francisco, California, at the hour of 10 o'clock a.m.
of said day, or so soon thereafter as counsel can be
heard, the defendant will bring on for hearing the
within motion.
Dated: April 21, 1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
t;5. United States of America 193
[Title of District Court and Cause.]
MOTION FOR POSTPONEMENT OF
TIME OF TRIAL
The defendant hereby moves the Court for its
order postponing the trial of the cause from May
16, 1949, to July 5, 1949, upon the ground and for
the reason that she has been informed by Theodore
Tamba, Esq., attorney associated with counsel for
defendant, who is presently engaged in taking the
depositions of defendant's witnesses in Japan and
Hong Kong, that it will be impossible to complete
the taking of said depositions on or by May 16,
1949, due to the fact that the witnesses there to be
interviewed exceed forty in number, the residences
and places of occupation of such witnesses in Japan
are scattered not only in the Tokyo area but in cities
other than Tokyo, that the means of transportation
to locate, interview and arrange for the taking of
said depositions are inadequate which has occa-
sioned and occasions unexpected delay therein ; that
the problems of locating, interviewing, and arrang-
ing for the taking of said depositions, including
arranging for interpreting from the Japanese to
the English language in connection therewith, are
more time consuming than originally estimated;
that the taking of said depositions can be completed
and the depositions returned to this Court on or
by July 5, 1949; that the defendant cannot safely
proceed to trial without the production of the testi-
mony of her witnesses who are in Japan and Hong
194 Iva Ikuko Toguri V Aquino
Kong and that she acquiesces in a postponement of
the trial of the cause for said purposes.
This motion will be made upon the pleadings,
records and files herein and upon the notice of this
motion and upon letters of Theodore Tamba, Esq.,
from Japan, to be offered in support of said motion
if the Court or counsel for plaintiff require them
to be offered in support thereof.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Receipt of copy acknowledged.
[Endorsed]: Piled April 21, 1949.
District Court of the United States, Northern
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Monday, the 25th day of April, in the year of
our Lord one thousand nine hundred and forty-nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause.]
ORDER
(Minute order authorizing issuance and
service of subpoenas and motion for list of
witnesses and veniremen to be continued to
May 2, 1949, and ordering case continued from
May 16, 1949, to July 5, 1949, for trial.)
This case came on this day for hearing as to the
vs. United States of America 195
following motions: motion to authorize issuance
and service of subpoenas, motion for list of wit-
nesses and veniremen, and motion to postpone date
of trial.
The defendant was present in custody of the
U. S. Marshal and with her attorney, Wayne Col-
lins, Esq., Hon. Prank J. Hennessy, U. S. Atty.,
for U. S. On motion of Mr. Collins and with con-
sent of Mr. Hennessy, it is Ordered that the motion
to authorize the issuance and service of subpoenas
and the motion for a list of witnesses and venire-
men be continued to May 2, 1949. Further ordered,
on motion of Mr. Collins, that this case be continued
from May 16, 1949, to July 5, 1949, for trial.
[Title of District Court and Cause.]
NOTICE
To Frank J. Hennessy, United States Attorney,
and to Tom DeWolfe, Special Assistant to the
Attorney General, Attorneys for the Plaintiff:
You and each of you will please take notice that
on Monday, the 9th day of May, 1949, at the Court
Room of the above-entitled Court, 3rd Floor, Post
Office Building, 7th and Mission Streets, San Fran-
cisco, California, at the hour of 10 o'clock a.m. of
said day, or as soon thereafter as counsel can be
heard, the defendant will bring on for hearing the
within motion.
Dated: May 4, 1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
196 Iva Ikuko Toguri D' Aquino
[Title of District Court and Cause.]
MOTION FOR ORDER AUTHORIZING AND
DIRECTING ISSUANCE AND SERVICE
OF SUBPOENAS REQUIRING ATTEND-
ANCE OF WITNESSES AT THE TRIAL
HEREIN AT THE EXPENSE OF THE j
GOVERNMENT j
The defendant, Iva Ikuko Toguri d 'Aquino, ,
moves the Court for its order authorizing and i
directing the issuance and service of subpoenas re- |
quiring the attendance of the hereinafter named !
witnesses, residing at the places hereinafter set
forth, at the trial herein at the expense of the I
plaintiff, the U. S. Government.
The names, addresses and places of residence of |
the said witnesses are as follows:
1. Willesden Cox, 2627 Kingsten Pike, Knox-
ville. Term.
2. Frank Fujita, Fort Sill, Oklahoma.
3. Shigemi Mazawa, 4842 Winthrop St., Chicago, ii
Illinois.
4. Jack Wisener, 4213 Red River Street, Austin,
Texas.
1.
5. Yoneko Matsunaga, New Jersey. ' ■
6. Milton Glazier, Dover, Idaho.
This motion is made upon the ground that each ;
of the named witnesses is a necessary and material
witness for the defendant on the trial of said action
vs. United States of America 197
and a witness whose testimony is necessary and
material to the defendant in her defense to said
action.
The facts to which each of the said witnesses is
expected to testify and the materiality of that testi-
mony is set forth in the affidavit of the defendant
filed in support of this motion which is incorporated
herein by reference for said purpose.
The defendant cannot safely proceed to trial of
said action without the production of the person of
each of said witnesses in court at the trial herein
to testify in person so that the individual testimony,
attitude and demeanor of each can be observed, con-
sidered and weighed by the Court and the jury.
This motion is also made upon the ground that the
defendant is an indigent person and does not have
sufficient means and is actually unable to pay the
fees for the issuance and service of said subpoenas
for said witnesses and is actually unable to pay the
costs of transportation of said witnesses to attend
! the said trial of the action. Each of said witnesses
^ is ready, willing and able to attend the trial and
testify on behalf of the defendant in the event he or
she is served with a subpoena and is paid the nec-
i essary witness fees and transportation expenses.
The failure or refusal of the Court to order or
authorize the issuance and service of said subpoenas
and the production of said witnesses at the trial
herein at the expense of the Government will result
in a failure of justice and deprive the defendant of
her substantial constitutional and statutory rights
198 Iva Ikuko Toguri D' Aquino
to a fair and impartial trial by jury and to obtain
witnesses in her favor, in violation of the provisions
of the Sixth Amendment and the due process of law
guaranty of the Fifth Amendment of the Consti-
tution.
This motion Avill be made and based upon the
notice of this motion, said motion, affidavit in sup-
port thereof, and upon all the records, pleadings,
files, court orders and documents herein, and upon
the similar motions heretofore made herein for like
service of subpoenas and for the taking of deposi-
tions filed herein on March 1, 1949, and April 5,
1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Points and Authorities
Rules 17 and 26, Rules of Criminal Procedure.
Fifth Amendment, U. S. Constitution.
Sixth Amendment, U. S. Constitution.
Title 18 USCA, Sec. 3005.
Respectfully submitted,
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
vs. United States of America 1.99
Affidavit in Support of Motion
Northern District of California,
State of California,
City and County of San Francisco — ss.
Iva Ikuko Toguri d 'Aquino being first duly sworn,
deposes and says: that she is the defendant in the
above-entitled action and is detained under process
of this Court, without bail, in San Francisco County
Jail No. 3, Dunbar and Washington Streets, San
Francisco, California; that she is an adult person
over the age of twenty-one (21) years; that ever
since on or about July 25, 1941, she has continuously
resided in Tokyo, Japan, where, on April 19, 1945,
she was lawfully united in marriage to one, Felipe
J. d 'Aquino, who then and ever since his birth has
been and still is a national and citizen of Portugal
residing in Tokyo, Japan; that she thereby and
thereon, pursuant to the law of Portugal, as also
the law of Japan, as also by the law of all other
civilized nations and by international law, became
and ever since then continuously has been and now
is a national and citizen of Portugal and in 1945
was formally naturalized as a Portuguese national
by said marriage and by formal registration of said
marriage as such a citizen of Portugal at the office
of the Consul of Portugal at Tokyo, Japan; that
ever since her said marriage she has resided at No.
396 Ikejiri Machi, Setagaya-Ku, Tokyo, Japan, with
her said husband.
200 Iva Ikuko Toguri D' Aquino
On August 26, 1948, defendant was arrested by
agents of the United States, acting under orders of
the Attorney General of the United States, and
thereupon imprisoned in the Sugamo Prison, Tokyo,
Japan, and thereafter was forcibly taken aboard
the S. S. General F. R. Hodges, a U. S. transport
vessel on which she was brought to San Francisco,
California, on September 25, 1948, and while said
vessel was in progress of docking at said port she
was seized by agents of the U. S. Federal Bureau
of Investigation upon a purported complaint filed
in this Court on September 25, 1948, was brought
before the U. S. Commissioner in this District and
thereafter was indicted in this cause which is now,
pending in this court.
The defendant is an indigent; aside from used
clothing and a few personal effects, the reasonable
value of which does not exceed Twenty Five
($25.00) Dollars, she possesses the following assets
only, viz., the equivalent of the sum of approxi-
mately One Hundred ($100.00) Dollars on deposit
in the Postal Savings Bank in Tokyo, jointly with
her husband in Tokyo, Japan, household furniture,
dishes, trunk, sewing machine and utensils of the
reasonable value of One Hundred ($100.00) Dol-
lars, and a remote claim or right, subservient to the
right of the Attorney General as the Alien Property
Custodian, in and to certain real property situated
in Los Angeles County, California, described as fol-
lows, to-wit:
vs. United States of America 201
Lots 42 and 57 of the South Gate Tract in the
Rancho Tajauta, as per map recorded in Book
13, Pages 14 and 15 of Maps in the ofiSce of the
County Recorder of said County, and portion
of the 538.28 acre track of land allotted to Jose
Maria Abila in the partition of Rancho Tajauta,
Case number 1200 of the 17th Judicial District
Court in the County of Los Angeles,
which said property she is informed and believes has
an approximate market value of Three Thousand
Five Hundred ($3,500.00) Dollars, the interest of
the defendant therein, however, being at most a dis-
putable claim and hence of substantially no value
whatever to her.
By reason of her skid poverty and indigency the
defendant does not have sufficient means and is actu-
ally unable to bear the expense of producing her
witnesses, hereinafter named, or any of them, to
testify in person in her defense at the trial herein,
or to bear the expense of their travel, subsistence
and witness fees for attending the trial herein or
to have issued and served upon them subpoenas
requiring them to appear and testify at the trial
herein.
That each of the witnesses, hereinafter named, is
a necessary and material witness for the defendant
on the trial of said action and the testimony of each
is necessary and material to the defendant in her
defense of said indictment.
That the defendant cannot safely proceed to a
trial of said action without the testimony of said
witnesses.
202 Iva Ikuko Toguri B' Aquino
The witnesses whose testimony is necessary and
material to be given in person at the trial herein,
their places of residence, their nationalities and
citizenships w^hich are unknown to defendant but
which she believes to be as hereinafter set forth,
and the material and necessary testimony they are
expected to give, in substance and effect, are as
follows :
1. Willesden Cox, 2627 Kingsten Pike, Knox-
ville, Tenn., a U. S. citizen, to testify that from
about January, 1944, to about Aug. 15, 1945, he
was a Major in the U. S. Army held as a prisoner
of war by the Japanese at Bunka Prison Camp,
Tokyo, Japan, along with a number of other cap-
tured U. S. and Allied officers, men and civilian per-
sonnel, each and all of whom were mistreated, in-
timidated, and held under duress by various Japa-
nese army authorities and were threatened with loss
of life if they failed to obey the orders of their
captors; that a number of said prisoners of war
were beaten by their captors for failure to obey the
orders and commands- of their captors ; that all of
said prisoners of war were kept in a constant state
of fear by their Japanese captors and that each of
those who were forced to broadcast from Eadio
Tokyo during said period of time and those who
wrote script therefor did so under compulsion of the
Japanese and were not free agents but acted solely
under duress and coercion; that the defendant did
not write any script or broadcast any news or propa-
ganda for the Japanese but did aid and comfort the
vs. United States of America 203
prisoners of war by secretly delivering to them
tobacco, food and medicine at great personal risk
to herself; that Kempeitai agents kept said prison-
ers of war and said defendant imder constant sur-
veillance and in fear.
2. Prank Fujita, Fort Sill, Oklahoma, a U. S.
citizen, to testify that from about September, 1944,
to about Aug. 15, 1945, he was a U. S. soldier held
prisoner by the Japanese at Bunka Prison Camp,
Tokyo, Japan, along with a number of other U. S.
and Allied officers, men and civilian personnel, each
and all of whom were mistreated, undernourished
and starved, and threatened with loss of life for
failure to obey the commands of their captors ; that
a number of the said prisoners of war were beaten
by the Japanese and all were held under continuous
duress; that Kempeitai agents kept them and the
defendant under continuous surveillance during said
period; that the defendant never w^rote any script
and never broadcast or announced any news or
propaganda for the Japanese; that there were a
number of females announcing and broadcasting at
Radio Tokyo during said period of time and that
a number of the alien women broadcasters an-
nounced propaganda for the Japanese and to testify
to names of each of such female broadcasters and
the nature and types of their respective broadcasts ;
that the defendant never committed any unlawfvil
act and never made any unlawful statement against
the U. S. and its Allies and never in anywise aided
the Jai)anese; that the defendant, at great personal
204 Iva Ikuko Toguri D^ Aquino
risk to her own security, secretly conveyed food,
medicine and supplies to U. S. and Allied prisoners
of war at Bunka Prison Camp to aid and comfort
them and to assist them in defeating the purposes of
the Japanese and secretly conveyed to said prison-
ers of war news of Allied successes for the purpose
of bolstering up their morale.
3. Shigemi Mazawa, 4842 Winthrop St., Chicago,
Illinois, a IT. S. citizen, to testify that from some-
time in early 1944 to about Aug. 15, 1945, he was
forced to work at Radio Tokyo, Tokyo, Japan ; that
he has been acquainted with the defendant since
early 1944 and saw her frequently at Radio Tokyo
during said period of time ; that he knows the nature
of her emplojonent there; that during said period
the defendant orally expressed her confidence and
faith in the U. S. and Allied cause and her sym-
pathy for the prisoners of war held at Bunka Prison
Camp who were coerced into working at Radio
Tokyo; that the defendant never wrote any radio
script during said period and never broadcast any
unlawful statement or committed any unlawful act
detrimental to the U. S. and its Allies ; that the de-
fendant was not a free agent while at Radio Tokyo
and that none of the prisoners of war there forced
to work by the Japanese were free agents but all
were held under duress and were kept under con-
tinuous surveillance and in fear by the Japanese
secret military police; and to testify to the period
of time the defendant was employed, the number
vs. United States of America 205
of days per week of that employment and the hours
thereof and the vacation periods she was given and
the number and times of her absences therefrom.
4. Jack Wisener, 4213 Red River Street, Austin,
Texas, a U. S. citizen, to testify that from the latter
part of 1943 to about Aug. 15, 1945, he was a lieu-
tenant in the U. S. Army held under duress as a
prisoner of war by the Japanese at Bunka Prison
Camp, Tokyo, Japan, along with a number of other
U. S. and Allied prisoners of war likewise held by
the Japanese under duress; that a number of the
prisoners of war there held were slapped and beaten
by the Japanese for failure to comply mth their
demands and to obey their orders; that they were
compelled to comply with the orders of their captors
to save their lives and that all of them suffered for
la<^k of food and most of them were rendered ill by
their mistreatment; that Kempeitai agents kept
them and the defendant under continuous sur-
veillance and in fear of their lives ; that the defend-
ant aided and comforted the U. S. and Allied pris-
oners of war at Bunka Prison Camp by secretly
conveying to them news of U. S. and Allied military
and naval successes to bolster up their spirits and
by conveying secretly to them tobacco, food and
medicine for like purposes; that the defendant
neither wrote radio script nor broadcast any unlaw-
ful statement against the U. S. and its Allies.
5. Yoneko Matsunaga, New Jersey, a U. S. citi-
zen, to testify that she has been acquainted with the
206 Iva Ikuko Toguri D' Aquino
defendant since sometime during 1942; that she at-
tended a school in Japan when defendant was in
attendance at school; that she was employed at
Radio Tokyo between November 1, 1943, and Aug.
15, 1945; and that she is familiar with the dates,
hours, days and period of time the defendant was
employed in Japan, the nature and duties of said
employment; that during said period of time the
defendant expressed her confidence and faith in the
U. S. and Allied cause to her; that she frequently
saw defendant at her employment and knows of her
own knowledge that the defendant never wrote any
Radio script and never broadcast any news or
propaganda for the Japanese; that there were a
number of female broadcasters employed at Radio
Tokyo on the Zero Hour program and on other
radio programs there broadcast, the names of said
females and the nature and content of their respec-
tive broadcasts; and to testify to the nature of the
defendant's employment, the period of time she was
employed, the hours she worked and the days she
was absent therefrom.
6. Milton Glazier, Dover, Idaho, a U. S. citizen,
to testify he was a soldier in the U. S. Army held as
a prisoner of war by the Japanese at Bunka Prison
Camp, Tokyo, Japan, from about May, 1945, to
about Aug. 23, 1945; that he and all other U. S.
and Allied prisoners of war then and there held by
the Japanese long had been held and all during said
period were hold under duress by the Japanese and
were intimidated, starved and coerced into obeying
vs. United States of America 207
commandwS of their oppressors; that a number of
said prisoners were coerced into working at Radio
Tokyo by the Japanese and that the said prisoners
endeavored to defeat and did succeed in defeating
the purpose of their Japanese oppressors; that the
defendant did not write any radio script and w^as
not employed so to do and to his knowledge never
broadcast anything detrimental to the U. S. and
Allied cause; that there were a number of females
w^ho were announcers at Radio Tokyo and to dis-
tinguish them from the defendant and their duties
from the defendant's; that he never heard the name
Tokyo Rose applied to the defendant in Japan; that
Kempeitai and police agents kept the defendant
and the prisoners of war under constant surveillance
and continuous fear.
Affiant alleges upon information and belief that
each of the foregoing named witnesses is ready,
willing and able to come to San Francisco to testify
in behalf of the defendant provided his or her travel
and subsistence expenses and witness fees will be
defrayed.
Affiant alleges that the failure or refusal of the
Court to authorize the production of the said wit-
nesses to testify in person for the .defendant at the
trial herein or the failure of the Government to
authorize subpoenas to be issued and served upon
them and said witnesses to be produced at the trial
herein for said purposes at the expense of the Gov-
ernment will result in a failure of justice and de-
prive her of a fair and impartial jury trial and of
208 Iva Ikuko Toguri D' Aquino
her right to obtain witnesses in her favor and of
the due process of law guaranteed her by the pro-
visions of the Sixth and Fifth Amendments of the
U. S. Constitution.
/s/ IVA IKUKO TOGURI
D 'AQUINO,
Affiant.
Subscribed and sworn to before me this 4th day
of May, 1949.
[Seal] /s/ C. M. TAYLOR,
Deputy Clerk, U. S. District Court, Northern Dis-
trict of California.
Receipt of copy acknowledged.
[Endorsed] : Filed May 4, 1949.
[Title of District Court and Cause.]
ORDER GRANTING DEFENDANT'S MOTIONS
FOR ORDER AUTHORIZING AND DI-
RECTING ISSUANCE AND SERVICE OF
SUBPOENAS OF DEFENDANT'S WIT-
NESSES AT TRIAL HEREIN AT THE EX-
PENSE OF THE GOVERNMENT
The motions of the defendant for order author-
izing and directing the issuan-ce and service of
subpoenas requiring the attendance of defendant's
witness at the trial herein at the expense of the
Government, filed herein on April 5, 1949, and May
vs. United States of America 209
3, 1949, having come on to be heard on May 9, 1949,
Wayne M. Collins, Esq., appearing for the defend-
ant and Frank J. Hennessy, IT. S. Attorney, appear-
ing for the plaintiff, and counsel for the plaintiff
having informed the Court that the plaintiff will
subpoena and produce at the trial the following per-
sons as witnesses for the plaintiff, namely. Amy
Masuda (Emi Matsuda or Masuda), Norman Eeyes
and Wallace E. Ince, and counsel for the defendant
having orally informed the Court that Martin Pray
is expected to be in the vicinity of San Francisco
in the latter part of June, 1949, and the motions
having been duly argued and thereupon submitted
to the Court for decision and the motion being duly
considered by the Court,
The Court finds that each of the herein named wit-
nesses is a necessary and material witness for the
defendant at the trial of said a43tion and is a wit-
ness whose testimony is necessary and material to
the defendant in her defense to said action; that
the defendant cannot safely proceed to a trial of
said action without the production of the person of
each said witness in court at the trial herein to
testify in person so that the individual testimony,
attitude and demeanor of each can be observed, con-
sidered and w^eighed by the Court and the jury at
the trial herein; and that the defendant is indigent
and does not have sufficient means and is actually
unable to pay the fees for the issuance and service
of subpoenas and the production of said witnesses
at the trial herein and is a<3tually unable to pay the
210 Iva Ikuko Toguri D 'Aquino
expenses of transportation of said witnesses to at-
tend the said trial ; and that a denial of said motions
would violate the provisions of Rule 17 RCP and
deprive the defendant of her substantial constitu-
tional rights to an impartial trial by jury and to
obtain witnesses in her favor, contrary to the pro-
visions of the Fifth and Sixth Amendments,
Now, Therefore, It Is Ordered that the defend-
ant's said motions be granted and that subpoenas
be issued for the defendant's witnesses, hereinafter
named, at their respective places of residence and
be served upon them and that the cost thereof and
their respective witness fees and travel expenses to
attend the trial of the cause herein be paid by the
United States Government, to-wit: —
1. George H. Henshaw, 2025 Benedict Canyon
Drive, Beverly Hills, California
2. Chiyeko Ito, 3118 Blanchard Street, Los An-
geles 33, California
3. James F. Whitten, Torrance, Los Angeles
County, California
4. May E. Hagedorn, 4211 Olive Drive, Everett,
Washington
5. Mrs. Norman Reyes (Katherine Reyes), 6412
South Ellis Street, Chicago, Illinois
6. John E. Tunnicliffe, Route 4, Box 233, Grants
Pass, Oregon
7. Mark L. Streeter, 1008 Cassia Street, Idaho
Falls, Idaho
vs. United States of America 211
8. John David Provoo, Walter Reed Hospital,
Washington, D. C.
9. Willesdon (Williston) Cox, 2627 Kingsten
Pike, Knoxville, Tenn.
10. Frank Pujita, Plectra, Texas
11. Shigemi Mazawa, 4842 Winthrop Street,
Chicago, Illinois
12. Jack Wisener, 4213 Red River Street, Aus-
tin, Texas
13. Mrs. Albert Kanzaki, nee Yoneko Matsunaga,
54 West 89th Street, New York, N. Y.
14. Milton Glazier, Dover, Idaho
15. Amy Masuda (Pmi Matsuda or Masuda), 212
North Fremont Ave., Los Angeles 12, Calif.
16. Norman Reyes, 1611 Pastland Avenue, Nash-
ville, Tenn.
17. Captain Wallace P. Ince, Presidio, San
Francisco, Calif.
Provided, however, that in the event the plain-
tiff issues and has subpoenas served upon the said
Amy Masuda (Pmi Matsuda or Masuda), Norman
Reyes and Major Wallace P. Ince or produces them
at the trial herein as witnesses for the plaintiff there
shall be no duplication in payment by the Govern-
ment of their transportation expenses and witness
fees.
And It Is Ordered that the defendant's motion to
produce the defendant's witness Martin Pray at
212 Iva Ikuko Toguri D' Aquino
Government expense be denied, without prejudice,
however, to a subsequent like motion to be made by-
defendant for the production of said witness, upon
a showing duly to be made.
Dated: May 18, 1949.
/s/ MICHAEL J. ROCHE,
U. S. District Judge.
Receipt of copy acknowledged.
[Endorsed] : Filed May 18, 1949.
[Title of District Court and Cause.]
ORDER
(Denying motion for lists of witnesses and
veniremen, and denying motion of defendant for
an order of this court to require the plaintiff to
supply defendant with a list of the names of
the witnesses to be produced on the trial for
proving the indictment, together with a state-
ment giving the place of abode of each such
witness, and also for its order requiring the
plaintiff to supply the defendant at least three
days before the trial with a list of the venire-
men stating the abode of each venireman.)
The above-entitled matter coming on for hearing
this 9th day of May, 1949, before the Court at 10 :00
o'clock a.m.. Prank J. Hennessy, United States At-
torney, appearing for plaintiff, and Wayne M. Col-
lins, appearing for the defendant, and the matter
vs. United States of America 213
having been heard by the Court, and submitted to
the Court for decision,
It Is Hereby Ordered that the motion of defend-
ant for such order be, at this time. Denied without
prejudice to its renewal by the defendant hereafter.
Signed in open Court this 18th day of May, 1949.
/s/ MICHAEL J. ROCHE,
U. S. District Judge.
Approved As To Form, as provided by Rule 22:
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Endorsed] : Filed May 18, 1949.
[Title of District Court and Cause.]
NOTICE
To Frank J. Hennessy, United States Attorney, and
to Tom DeW.olfe, Special Assistant to the At-
torney General, Attorneys for the Plaintiff :
You and each of you will please take notice that
on the 31st day of May, 1949, at the Courtroom of
the above-entitled Court, 3rd Floor, Post Office
Building, 7th and Mission Streets, San Francisco,
California, at the hour of 10 o'clock a.m. of said
day, or so soon thereafter as counsel can be heard,
the defendant will bring on for hearing the within
motion.
Dated: May 24, 1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
214 Iva Ikuko Toguri V Aquino
[Title of District Court and Cause.]
I.
MOTION FOR ORDER AUTHORIZING AND
DIRECTING ISSUANCE AND SERVICE
OF SUBPOENAS REQUIRING ATTEND-
ANCE OF WITNESSES AT THE TRIAL
HEREIN AT THE EXPENSE OP THE
GOVERNMENT
The defendant, Iva Ikuko Toguri d 'Aquino, moves
the Court for its order authorizing and directing the
issuance and service of subpoenas requiring the
attendance of the hereinafter named witnesses, re-
siding at the places hereinafter set forth, at the
trial herein at the expense of the plaintiff, the U. S.
Government.
The names, addresses and places of residence of
the said witnesses are as foUow^s:
1. Albert Rickert, Care Pacific American Fish-
eries, Bellingham, Washington
2. Edwin Kalbfleish, Jr., 1702 Bellevue, Rich-
mond Heights 17, Missouri
This motion is made upon the ground that each
of the named witnesses is a necessary and material
witness for the defendant on the trial of said action
and a witness whose testimony is necessary and ma-
terial to the defendant in her defense to said action.
The facts to which each of the said witnesses is
expected to testify and the materiality of that testi-
vs. United States of America 215
mony is set forth in the affidavit of the defendant
filed in support of this motion which is incorporated
herein by reference for said purpose.
The defendant -cannot safely proceed to trial of
said action without the production of the person
of each of said witnesses in court at the trial herein
to testify in person so that the individual testimony,
attitude and demeanor of each can be observed, con-
sidered and weighed by the Court and the jury.
This motion is also made upon the ground that
the defendant is an indigent person and does not
have sufficient means and is actually unable to pay
the fees for the issuance and service of said sub-
poenas for said witnesses and is actually unable to
pay the costs of transportation of said witnesses
to attend the said trial of the action. Each of said
witnesses is ready, willing and able to attend the
trial and testify on behalf of the defendant in the
event he is served with a subpoena and is paid the
necessary witness fees and transportation expenses.
The failure or refusal of the Court to order or
authorize the issuance and service of said subpoenas
and the production of said witnesses at the trial
herein at the expense of the Government will result
in a failure of justice and deprive the defendant of
her substantial constitutional and statutory rights
to a fair and impartial trial by jury and to obtain
witnesses in her favor, in violation of the provisions
of the Sixth Amendment and the due process of law
guaranty of the Fifth Amendment of the Consti-
tution.
216 Iva Ikuko Toguri ID' Aquino
This motion mil be made and based upon the
notice of this motion, said motion, affidavit in sup-
port thereof, and upon all the records, pleadings,
files, court orders and documents herein, and upon
the similar motion heretofore made herein for like
service of subpoenas and for the taking of deposi-
tions filed herein on March 1, 1949 and April 5, 1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Points and Authorities
Rules 17 and 26, Rules of Criminal Procedure.
Fifth Amendment, U. S. Constitution.
Sixth Amendment, U. S. Constitution.
Title 18 USCA, Sec. 3005.
Respectfully submitted,
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Title of District Court and Cause.]
Affidavit in Support of Motion
Northern District of California,
State of California,
City and County of San Francisco — ss.
Iva Ikuko Toguri d 'Aquino being first duly sworn,
deposes and says: that she is the defendant in the
above-entitled action and is detained under process
vs. United States of America 217
of this Court, ^Yithout bail, in San Francisco County
Jail No. 3, Dunbar and Washington Streets, San
Francisco, California; that she is an adult person
over the age of twenty-one (21) years; that ever
since on or about July 25, 1941, she has continu-
ously resided in Tokyo, Japan, where, on April 19,
1945, she was lawfully united in marriage to one,
Felipe J. d 'Aquino, who then and ever since his
birth has been and still is a national and citizen of
Portugal residing in Tokyo, Japan ; that she thereby
and thereon, pursuant to the law of Portugal, as
also the law of Japan, as also by the law of all other
civilized nations and by international law, became
and ever since then continuously has been and now
is a national and citizen of Portugal and in 1945
was formally naturalized as a Portuguese national
by said marriage and by formal registration of said
marriage as such a citizen of Portugal at the office
of the Consul of Portugal at Tokyo, Japan; that
ever since her said marriage she has resided at No.
396 Ikejiri Machi, Setagaya-Ku, Tokyo, Japan, with
her said husband.
On August 26, 1948, defendant was arrested by
agents of the United States, acting under orders
of the Attorney General of the United States, and
thereupon imprisoned in the Sugamo Prison, Tokyo,
Japan, and thereafter was forcibly taken aboard the
S. S. General F. R. Hodges, a U. S. transport vessel
on which she w^as brought to San Francisco, Cali-
fornia, on September 25, 1948, and while said vessel
was in progress of docking at said port she was
218 Iva Ikuko Togitri D' Aquino
seized by agents of the U. S. Federal Bureau of In-
vestigation upon a purported complaint filed in this
Court on September 25, 1948, was brought before
the U. S. Commissioner in this District and there-
after was indicted in this cause which is now pend-
ing in this court.
The defendant is an indigent; aside from used
clothing and a few personal effects, the reasonable
value of which does not exceed Twenty Five
($25.00) Dollars, she possesses the following assets
only, viz., the equivalent of the sum of approxi-
mately One Hundred ($100.00) Dollars on deposit
in the Postal Savings Bank in Tokyo, jointly w^ith
her husband in Tokyo, Japan, household furniture,
dishes, trunk, sewing machine and utensils of the
reasonable value of One Hundred ($100.00) Dollars,
and a remote claim or right, subservient to the right
of the Attorney General as the Alien Property Cus-
todian, in and to certain real property situated in
Los Angeles County, California, described as fol-
lows, to-wit :
Lots 42 and 57 of the South Gate Tract in the
Rancho Tajauta, as per map recorded in Book
13, Pages 14 and 15 of Maps in the office of the
County Recorder of said County, and portion
of the 538.28 acre track of land allotted to Jose
Maria Abila in the partition of Ran<3ho Tajauta,
Case number 1200 of the 17th Judicial District
Court in the County of Los Angeles.
which said property she is informed and believes
has an approximate market value of Three Thousand
vs. United States of America 219
Five Hundred ($3,500.00) Dollars, the interest of
the defendant therein, however, being at most a dis-
putable claim and hence of substantially.no value
whatever to her.
By reason of her said poverty and indigency the
defendant does not have sufficient means and is actu-
ally unable to bear the expense of producing her
witnesses, hereinafter named, or any of them, to
testify in person in her defense at the trial herein,
or to bear the expense of their travel, subsistence
and witness fees for attending the trial herein or to
have issued and served upon them subpoenas requir-
ing them to appear and testify at the trial herein.
That each of the witnesses, hereinafter named, is
a necessary and material witness for the defendant
on the trial of said action and the testimony of each
is necessary and material to the defendant in her
defense of said indictment.
That the defendant cannot safely proceed to a
trial of said action without the testimony of said
witnesses.
The witnesses whose testimony is necessary and
material to be given in person at the trial herein,
their places of residence, their nationalities and citi-
zenships which are unknown to defendant but which
she belives to be as hereinafter set forth, and the
material and necessary testimony they are expected
to give, in substance and effect, are as follows:
1. Albert Rickert, Care Pacific American Fisli-
eries, Bellingham, Washington, a U. S. citizen, to
testify that he was a non-commissioned officer in the
220 Iva Ikuko Toguri D' Aquino
U. S. Marine Corps held as a prisoner of war by
the Japanese along with over twenty-five other U. S.
and Allied officers and men and civilian personnel,
each of whom he is to identify, at Bunka Prison
Camp, Tokyo, Japan, from about November, 1943,
to about August 15, 1945; that said persons were
coerced and intimidated by their oppressors into
broadcasting for the Japanese at Radio Tokyo under
threats of the Japanese authorities that if they re-
fused to obey they would be executed; that they
were beaten by their Japanese oppressors and were
starved and that they were forced to eat leaves, cats
and dogs to sustain their lives; to identify the de-
fendant and the female announcers at Radio Tokyo
and to state their respective activities during said
period of time and to relate the conditions under
which they and the said prisoners w^ere compelled
to labor and suffer and to the fact that the Kem-
peitai kept them all under constant surveillance and
fear; that the said prisoners secretly received to-
bacco, food and medicine from the defendant and
others who sustained them in their efforts to defeat
the purposes of the Japanese ; that a number of said
prisoners made complaints against their said mis-
treatment to the Japanese authorities.
2. Edwin Kalbfleish, Jr., 1702 Bellevue, Rich-
mond Heights, 17, Missouri, a U. S. citizen, to
testify that he was a U. S. army officer who was
taken prisoner by the Japanese in 1942 and there-
after was detained by them at Bunka Prison Camp,
Tokyo, Japan, from October, 1942, or earlier, to the
vs. United States of America 221
summer of 1945, along with over twenty-five other
U. S. and Allied officers and men and civilian per-
sonnel; that during said period said persons were
held under duress and were intimidated and coerced
into broadcasting via radio for their Japanese op-
pressors under threats against their lives if they
failed to obey; that they were mistreated, beaten
and starved by the Japanese; that the announcers
on the Zero Hour and other broadcast programs
were compelled to broadcast by the Japanese and
that, although they were kept under constant sur-
veillance by the Kempeitai and other Japanese au-
thorities, they managed to defeat the purposes of
the Japanese and to relate the methods employed in
so doing; to identify the male and female an-
nouncers on those programs and to testify to the
nature and contents of their broadcasts and the
names of the persons who composed the script there-
for; that a number of persons, including the de-
fendant, secretly conveyed food to the said prisoners
of war to sustain them ; that he and other prisoners
complained to the Japanese authorities about the
conditions under which they were forced to live and
to produce copies of his and their written com-
plaints and reports of their suffering so made.
Affiant alleges upon information and belief that
each of the foregoing named witnesses is ready,
willing and able to come to San Francisco to testify
in behalf of the defendant provided his or her
travel and subsistence expenses and witness fees
will be defrayed.
222 Iva Ikuko Toguri D^ Aquino
Affiant alleges that the failure or refusal of the
Court to authorize the production of the said wit-
nesses to testify in person for the defendant at the
trial herein or the failure of the Government to
authorize subpoenas to be issued and served upon
them and said witnesses to be produced at the trial
herein for said purposes at the expense of the Gov-
ernment and will result in a failure of justice and
deprive her of a fair and impartial jury trial and
of her right to obtain witnesses in her favor and
of the due process of law guaranteed her by the pro-
visions of the Sixth and Fifth Amendments of the
U. S. Constitution.
/s/ IVA IKUKO TOGURI
D 'AQUINO,
Affiant.
Subscribed and sworn to before me this 24th day
of May, 1949.
[Seal] /s/ C. M. TAYLOR,
Deputy Clerk, U. S. District Court, Northern Dis-
trict of California.
Receipt of copy acknowledged.
[Endorsed] : Piled May 24, 1949.
vs. United States of America 223
[Title of District Court and Cause.]
ORDER GRANTING DEPENDANT'S MOTION
FOR ORDER AUTHORIZING AND DI-
RECTING ISSUANCE AND SERVICE OF
SUBPOENAS OF DEFENDANT'S WIT-
NESSES AT TRIAL HEREIN AT THE EX-
PENSE OP THE GOVERNMENT
The motion of the defendant for order authorizing
and directing the issuance and service of subpoenas
requiring the attendance of defendant's witness at
the trial herein at the expense of the Government,
filed herein on May 24, 1949, having come on to be
heard on May 31, 1949, Wayne M. Collins, Esq.,
appearing for the defendant and Frank J. Hen-
nessy, U. S. Attorney, appearing for the plaintiff,
and the motion having been duly argued and there-
upon submitted to the Court for decision and the
motion being duly considered by the Court,
The Court finds that each of the herein named
witnesses is a necessary and material witness for
the defendant at the trial of said action and is a
witness whose testimony is necessary and material
to the defendant in her defense to said action ; that
the defendant cannot safely proceed to a trial of
said action, without the production of the person of
each said witness in court at the trial herein to
testify in person so that the individual testimony,
attitude and demeanor of each can be observed, con-
sidered and weighed by the Court and the jury at
the trial herein; and that the defendant is indigent
224 Iva Ikuko Togiiri D' Aquino
and does not have sufficient means and is a<3tually
unable to pay the fees for the issuance and service
of subpoenas and the production of said witnesses
at the trial herein and is actually unable to pay the
expenses of transportation of said witnesses to at-
tend the said trial ; and that a denial of said motions
would violate the provisions of Rule 17 ECP and
deprive the defendant of her substantial constitu-
tional rights to an impartial trial by jury and to
obtain witnesses in her favor, contrary to the pro-
visions of the Fifth and Sixth Amendments,
Now, Therefore, It Is Ordered that the defend-
ant's said motions be granted and that subpoenas be
issued for the defendant's witnesses, hereinafter
named, at their respective places of residence and be
served upon them and that the cost thereof and their
respective witness fees and travel expenses to attend
the trial of the cause herein be paid by the United
States Government, to-wit: —
1. Albert Eickert, Care Pacific American Fish-
eries, Bellingham, Washington
2. Edwin Kalbfleish, Jr., 1702 Bellevue, Rich-
mond Heights 17, Missouri
Dated : June 1st, 1949.
/s/ MICHAEL J. ROCHE,
U. S. District Judge.
Receipt of copy acknowledged.
[Endorsed] : Filed June 1, 1949.
vs. United States of America 225
[Title of District Court and Cause.]
MOTION FOR LISTS OF WITNESSES
AND VENIREMEN
The defendant moves this Court, under Title 18
USCA, Sec. 3432, (formerly Sec. 562), for the order
of this Court requiring the plaintiff or its counsel
to supply the defendant with a list of the names of
the witnesses to be produced on the trial for prov-
ing the indictment herein together with a statement
giving the place of abode of each such witness and
also for its order requiring the plaintiff or its coun-
sel to supply the defendant at least three entire days
before the trial with a list of the veniremen stating
the abode of each venireman.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Points and Authorities in Support of Motion
Title 18 USCA, Sec. 3432 (formerly Sec. 562)
reads as follows:
'^A person charged with treason or other capital
offense shall at least three entire days before com-
mencement of trial be furnished with a copy of the
indictment and a list of the veniremen, and of the
witnesses to be produced on the trial for proving
the indictment, stating the place of abode of each
venireman and witness."
The provision is mandatory. See Logan v. U. S.
144 U. S. 263, 304, and McNabb v. IT. S. (CCA-
226 Iva Ikuko Toguri D' Aquino
Tenn), 123 Fed. 2d. 848, 853, rev. on other grounds,
318 U. S. 332. The purpose of the statute is to
enable a defendant to investigate the jurors and the
witnesses.
Respectfully submitted,
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Receipt of copy acknowledged.
[Endorsed] : Piled June 16, 1949.
[Title of District Court and Cause.]
MOTION FOR SUPPLEMENTAL ORDER AU-
THORIZING ADDITIONAL SUBSIST-
ENCE EXPENSES TO BE PAID DEFEND-
ANT'S COUNSEL FOR ATTENDING
EXAMINATIONS OF WITNESSES
Defendant moves the Court for its order author-
izing the Government to pay to her counsel Theo-
dore Tamba, Esq., the additional sum of Three Hun-
dred Dollars ($300.00) as and for his subsistence
expenses while engaged in the taking of depositions
of defendant's witnesses in Japan in this cause.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
State of California,
City and County of San Francisco — ss.
Theodore Tamba, being first duly sworn, deposes
and says: that on March 25, 1949, he departed by
I
vs. United States of America 227
plane for Japan via the Northwest Airline and on
arrival there located witnesses for the defense, inter-
viewed them and took some thirty one (31) deposi-
tions for and on behalf of the defendant in the fore-
going cause; that he returned by plane via said
Northwest Airline and arrived in San Francisco,
California, on the night of June 7, 1949 ; that travel-
ing to and from Japan and the taking of said depo-
sitions consumed a total of seventy-five (75) days;
that heretofore, by order of this Court made and
entered herein on March 15, 1949, his subsistence
expenses, at the rate of $10 per day, was estimated
to amount to a sum of $450 covering an estimated
period of forty-five (45) days and was authorized
to be paid by the Government ; by reason of the fact,
that the taking of the ne<3essary and material depo-
sitions necessarily consumed a total of seventy-five
(75) days, that is to say, thirty (30) days in addi-
tion to the number of days originally estimated and
provided for by the said order of this Court, he
requests an order of this Court authorizing that the
said sum of three hundred dollars ($300.00) be paid
to him by the Government for said subsistence.
/s/ THEODORE TAIIBA.
Subscribed and sworn to before me this 16th day
of June, 1949.
[Seal] /s/ ERNEST BESIG,
Notary Public in and for the City and County of
San Francisco, State of California.
[Endorsed] : Filed June 16, 1949.
228 Iva Ikuko Toguri D^ Aquino
[Title of District Court and Cause.]
MOTION FOR PRODUCTION OF DOCU-
MENTARY EVIDENCE
(Rule 17(c) RCP)
Defendant moves the Court for its order directing
Prank J. Hennessy, U. S. Attorney, and Tom De-
Wolfe, Special Assistant to the Attorney General,
attorneys for the plaintiff, to produce before the
above-entitled Court, for inspection by the defend-
ant and her counsel, at a time to be determined by
the Court prior to the trial or prior to the time when
they are to be offered or sought to be offered in evi-
dence or used at the trial herein, the following
documents : —
1. The original, or copies of, letters, radiograms,
wireless messages and other written memoranda, in-
cluding requests, orders, instructions or process of
the Attorney General, the Department of Justice or
its agents, addressed or sent to the Supreme Com-
mander, Allied Powers (SCAP), Tokyo, Japan, the
Commander of tiie U. S. Eighth Army in Japan, the
Counter Intelligence Corps, U. S. Army, in Japan,
the Commanding Officer of Sugamo Prison in
Tokyo, Japan, the Commanding Officer of Yoko-
hama Prison in Yokohama, Japan, the Secretary of
State and Department of State in Washington, and
to its consular or other agent or agents in Japan,
and replies received thereto from said officers, de-
partments or agents between on or about August 15,
vs. United States of America 229
1945, to and including September 25, 1948, com-
plaining of the defendant or directing or requesting
the following things : the arrest of the defendant on
or about September 5, 1945, at Yokohama, Japan,
by agents of the U. S. ; her detention there until
September 6, 1945, and her then release therefrom;
the arrest of the defendant on or about October 16,
1945, at Tokyo, Japan, by agents of the U. S. and
her imprisonment by them at the Yokohama Prison
in Yokohama, Japan, until November 16, 1945, and
thereafter from then to October 25, 1946, at the
Sugamo Prison in Tokyo, Japan, and her then re-
lease therefrom; her arrest on or about August 26,
1948, at Tokyo, Japan, by agents of the U. S., and
imprisonment in Sugamo Prison, Tokyo, Japan, and
her transportation therefrom to the S. S. General
P. R. Hodges, a U. S. transport vessel, and thence
to San Prancisco, California, by said vessel which
here arrived on September 25, 1948; or relating to
any of said things.
2. The original or copies of letters, radiograms,
wdreless messages and other w^ritten memoranda, in-
cluding requests, orders, instructions or process of
the Supreme Commander, Allied Powers (SCAP),
Tokyo, Japan, addressed or sent to Tom C. Clark,
Attorney General, or the Department of Justice,
Washington, D. C, or to the agents of said Depart-
ment, the Commander of the U. S. Eighth Army in
Japan, the Counter Intelligence Corps, U. S. Army,
in Japan, the Commanding Officer of Sugamo
230 Iva Ikuko Toguri D' Aquino
Prison in Tokyo, Japan, the Commanding Officer
of Yokohama Prison in Yokohama, Japan, the Sec-
retary of State or Department of State in Wash-
ington, D. C, and to its consular or other agent or
agents in Japan, and replies received thereto from
said officers, departments or agents, between on or
about August 15, 1945, to and including September J
25, 1948, authorizing, directing or requesting the
following things : the arrest of the defendant on or
about September 5, 1945, at Yokohama, Japan, by
agents of the U. S.; her detention there until Sep-
tember 6, 1945, and her then release therefrom ; the
arrest of the defendant on or about October 16, 1945,
at Tokyo, Japan, by agents of the U. S. and her
imprisonment by them at the Yokohama Prison in
Yokohama, Japan, until November 16, 1945, and
thereafter from then to October 25, 1946, at the
Sugamo Prison in Tokyo, Japan, and her then re-
lease therefrom; her arrest on or about August 26,
1948, at Tokyo, Japan, by agents of the U. S., and
imprisonment in Sugamo Prison, Tokyo, Japan, and
her transportation therefrom to the S. S. General
F. R. Hodges, a U. S. transport vessel, and thence -
to San Francisco, California, by said vessel which
here arrived on September 25, 1948; or relating to
any of said things.
3. The original or copies of letters, radiograms,
wireless messages and other written memoranda, in-
cluding requests, orders, instructions and process of
the Secretary of State, the Department of State, and
also of its consular or other agent or agents in
Japan, addressed or sent to Tom C. Clark, as the
vs. United States of America 231
Attorney General, or to the Department of Justice
or agents of said Department, the Supreme Com-
mander, Allied Powers (SCAP), Tokyo, Japan, the
Commander of the U. S. Eighth Army, in Japan,
the Counter Intelligence Corps, U. S. Army, Japan,
the Commanding Officer of Sugamo Prison in
Tokyo, Japan, and the replies re<3eived thereto from
said officers, departments or agents, between on or
about August 15, 1945, to and including September
25, 1948, authorizing, directing or requesting the
following things: the arrest of the defendant on or
about September 5, 1945, at Yokohama, Japan, by
agents of the U. S. ; her detention there until Sep-
tember 6, 1945, and her then release therefrom ; the
arrest of the defendant on or about October 16, 1945,
at Tokyo, Japan, by agents of the U. S. and her
imprisonment by them at the Yokohama Prison in
Yokohama, Japan, until November 16, 1945, and
thereafter from then to October 25, 1946, at the
Sugamo Prison in Tokyo, Japan, and her then re-
lease therefrom; her arrest on or about August 26,
1948, at Tokyo, Japan, by agents of the U. S., and
imprisonment in Sugamo Prison, Tokyo, Japan, and
her transportation therefrom to the S. S. General
F. R. Hodges, a U. S. transport vessel, and thence
to San Francisco, California, by said vessel which
here arrived on September 25, 1948; or relating to
any of said things.
4. Any and all written charges, accusations or
complaints made, brought or filed by authority of
232 Iva Ikuko Toguri D 'Aquino
the plaintiff, the United States, including the United
States Army, SCAP, the U. S. Eighth Army, the
Comiter Intelligence Corps of the U. S. Army in
Japan, the Attorney General, the Department of
Justice, and the State Department in Japan, against
the defendant between August 13, 1943, and Sep-
tember 25, 1948, together with any and all records
made or kept of any and all examinations, hearings
or trials of the defendant had thereon and the dis-
position made thereof.
5. The original records, or copies thereof, of the
Sugamo Prison and Yokohama Prison relating to
the defendant, and, in particular, those records,
letters, messages, files, letters, instructions and proc-
ess relating to the arrests, incarcerations and re-
leases of the defendant from imprisonment as men-
tioned in paragraphs 1, 2, 3, and 4 hereinabove.
6. Any and all radio script, or copies thereof,
the plaintiff asserts or claims was prepared, com-
posed, written, typed, used, read, announced or
broadcast by radio by the defendant between about
November 1, 1943, and on or about August 13, 1945,
at or from Eadio Tokyo or Radio Station JOAK
in Japan.
7. Any and all phonographic recordings the
plaintiff asserts or -claims to be made of the def end-
ant 's voice between about November 1, 1943, to on
or about August 13, 1945, and since then.
8. Any and all musical records or recordings the
plaintiff asserts or claims the defendant played or
vs. United States of America 233
broadcast or caused to be played or broadcast be-
tween about November 1, 1943, and August 13, 1945,
from Radio Tokyo or Radio Station JOAK in
Japan.
9. Any and all statements in writing made, exe-
cuted, signed or initialed by the defendant for the
plaintiff or for any agent or agents of the plaintiff
or for any other person or persons or asserted or
claimed by the plaintiff to have been made by the
defendant between Aug. 15, 1945, and Sept. 25, 1948,
relating to her life, employment and conduct in
Japan from about July 1, 1941, to about September
25, 1948.
10. Any and all oral statements the plaintiff
asserts or claims was made by the defendant to the
plaintiff or to any agent or agents of the plaintiff
or any other person or persons between August 15,
1945, and Sept. 25, 1948, and transcribed or reduced
to writing relating to her life, employment and
•conduct in Japan from about July 1, 1941, to about
Sept. 25, 1948.
11. Any and all other records of the plaintiff or
U. S. Government departments or agents bearing
on this case.
The above-mentioned books, papers, documents
and objects are identical with those designated in
the subpoena heretofore issued and served upon
counsel for the plaintiff.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Endorsed] : Filed June 16, 1949.
Receipt of copy acknowledged.
[Endorsed] : Filed June 16, 1949.
234 Iva Ikuko Toguri D' Aquino
[Title of District Court and Cause.]
NOTICE
To Frank J. Hennessy, U. S. Attorney, and Tom
DeWolfe, Special Assistant to the Attorney
General, Attorneys for plaintiff:
You and each of you will please take notice that
on Monday the 20th day of June, 1949, in the Court- I
room of the above-entitled Court the defendant will
bring on for hearing her motion for production of
documentary evidence, her motion for supplemental
order authorizing additional subsistence expenses to
be paid defendant's comisel for attending examina-
tion of witnesses and motion for list of witnesses
and veniremen.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
vs. United States of America 235
[Title of District Court and Cause.]
ORDER GRANTING MOTION FOR SUPPLE-
MENTAL ORDER AUTHORIZING ADDI-
TIONAL SUBSISTENCE EXPENSES TO
BE PAID BY THE GOVERNMENT TO DE-
PENDANT'S COUNSEL FOR ATTENDING
EXAMINATIONS OF WITNESSES
The defendant's motion for supplemental order
authorizing additional subsistence expenses to be
paid defendant's counsel for attending examinations
of witnesses abroad coming on regularly to be heard
this 20th day of June, 1949, Wayne M. Collins, Esq.,
appearing for the defendant, and Frank J. Hen-
nessy, U. S. Attorney, and Tom DeWolfe, Special
Assistant to the Attorney General, appearing for the
plaintiff, and the matter thereupon being submitted
to the Court for decision and being duly considered
by the Court, it is ordered that said motion be
granted and that the sum of Three Hundred Dollars
($300.00) be paid to defendant's counsel, Theodore
Tamba, Esq., for the thirty (30) day subsistence
expenses in addition to that of the subsistence ex-
penses heretofore allowed by order of Court dated
March 15, 1949, for attending the examinations and
taking of depositions of defendant's witnesses in
Japan.
Dated : June 20, 1949.
/s/ MICHAEL J. ROCHE,
U. S. District Judge.
[Endorsed] : Filed June 20, 1949.
236 Iva Ikuko Toguri D' Aquino
District Court of the United States, Northern Dis-
trict of California, Southern Division
At A Stated Term of the District Court of the
United States for the Northern Distri<3t of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Monday, the 20th day of June, in the year of
our Lord one thousand nine hundred and forty-nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause.]
ORDER
(Order granting motion for additional ex-
penses, etc., motion to quash subpoena duces
tecum served on Mr. Hennessy, and motion for
. list of witnesses and veniremen.)
This case came on for hearing on motion to pro-
duce, motion for additional expenses, and motion for
lists. Defendant was present in custody of U. S.
Marshal. After hearing the arguments of Wayne
Collins, Esq., attorney for defendant, and Hon.
Frank J. Hennessy, U. S. Attorney, it is Ordered
that the motion for additional expenses, etc., be
granted; that the motion to quash subpoena duces
tecum served on Mr. Hennessy be granted ; and that
the motion for a list of witnesses and veniremen be
granted, said list to be served at least three days
prior to the trial. Ordered case continued to June
22, 1949 for hearing on motion to produce.
vs. United States of America 237
[Title of District Court and Cause.]
ORDER REQUIRING PLAINTIFF TO SUP-
PLY DEFENDANT WITH LISTS OF VE-
NIREMEN AND WITNESSES
The motion of the defendant for lists of witnesses
and veniremen, filed herein on June 16, 1949, having
come on regularly for hearing the 20th day of June,
1949, Wayne M. Collins, Esq., appearing for the
defendant, and Frank J. Hennessy, U. S. Attorney,
appearing for the plaintiff, and the motion being
duly argued and submitted to the Court for decision.
It Is Ordered that the plaintiff or the plaintiff's
counsel supply to the defendant or defendant's
counsel at least three days before the commence-
ment of the trial herein a list of the veniremen and
a list of the witnesses to be produced by the plaintiff
on the trial for proving the indictment, stating the
place of abode of each venireman and witness.
Dated: June 22nd, 1949.
/s/ MICHAEL J. ROCHE,
U. S. District Judge.
Receipt of copy attached.
[Endorsed] : Filed June 22, 1949.
238 Iva Ikuko Toguri D' Aquino
[Title of District Court and Cause.]
SUBPOENA TO TESTIFY
To: Tom DeWolfe, Special Assistant to the At-
torney General, and Frank J. Hennessy, U. S.
Attorney.
You are hereby commanded to appear in the Dis-
trict Court of the United States for the Northern
District of California at Room 338, Post Office
Building in the city of San Francisco, California,
on i\iQ 5th day of July, 1949, at 10:00 o'clock a.m.
to testify in the case of the United States v. Iva
Ikuko Toguri d 'Aquino.
And bring with you the following :
1. The original, or copies of, letters, radiograms,
wireless messages and other written memoranda,
including requests, orders, instructions or process
of the Attorney General, the Department of Justice
or its agents, addressed or sent to the Supreme Com-
mander, Allied Powers (SCAP)., Tokyo, Japan, the
Commander of the U. S. Eighth Army in Japan, the
Counter Intelligence Corps, U. S. Army, in Japan,
the Commanding Officer of Sugamo Prison in
Tokyo, Japan, the Commanding Officer of Yoko-
hama Prison in Yokohama, Japan, the Secretary of
State and Department of State in Washington, and
to its consular or other agent or agents in Japan,
and replies received thereto from said officers, de-
partments or agents between on or about August 15,
vs. United States of America 239
1945, to and including September 25, 1948, com-
plaining of the defendant or directing or requesting
the following things : the arrest of the defendant on
or about September 5, 1945, at Yokohama, Japan,
by agents of the U. S.; her detention there until
September 6, 1945, and her then release therefrom;
the arrest of the defendant on or about October 16,
1945, at Tokyo, Japan, by agents of the U. S. and
her imprisonment by them at the Yokohama Prison
in Yokohama, Japan, until November 16, 1945, and
thereafter from then to October 25, 1946, at the
Sugamo Prison in Tokyo, Japan, and her then re-
lease therefrom; her arrest on or about August 26,
1948, at Tokyo, Japan, by agents of the U. S., and
imprisonment in Sugamo Prison, Tokyo, Japan, and
her transportation therefrom to the S. S. General
P. R. Hodges, a IT. S. transport vessel, and thence
to San Francisco, California, by said vessel which
here arrived on September 25, 1948; or relating to
any of said things.
2. The original or copies of letters, radiograms,
wireless messages and other written memoranda, in-
cluding requests, orders, instructions or process of
the Supreme Commander, Allied Powers (SCAP),
Tokyo, Japan, addressed or sent to Tom C. Clark,
Attorney General, or the Department of Justice,
Washington, D. C, or to the agents of said Depart-
ment, the Commander of the U. S. Eighth Army in
Japan, the Counter Intelligence Corps, U. S. Army,
in Japan, the Commanding Officer of Sugamo
240 Ivalkuko ToguriD^ Aquino I
Prison in Tokyo, Japan, the Commanding Officer of
Yokohama Prison in Yokohama, Japan, the Secre-
tary of State or Department of State in Washing-
ton, D. C, and to its consular or other agent or
agents in Japan, and replies received thereto from
said officers, departments or agents, between on or
about August 15, 1945, to and including September
25, 1948, authorizing, directing or requesting the
following things : the arrest of the defendant on or
about September 5, 1945, at Yokohama, Japan, by
agents of the U. S. ; her detention there until Sep- ^
tember 6, 1945, and her then release therefrom ; the
arrest of the defendant on or about October 16,
1945, at Tokyo, Japan, by agents of the U. S. and
her imprisonment by them at the Yokohama Prison
in Yokohama, Japan, until November 16, 1945, and
thereafter from then to October 25, 1946, at the
Sugamo Prison in Tokyo, Japan, and her then re-
lease therefrom; her arrest on or about August 26,
1948, at Tokyo, Japan, by agents of the IT. S., and
imprisonment in Sugamo Prison, Tokyo, Japan, and
her transportation therefrom to the S. S. General
F. E. Hodges, a IT. S. transport vessel, and thence
to San Francisco, California, by said vessel w^hi^^h
here arrived on September 25, 1948; or relating to
any of said things.
3. The original or copies of letters, radiograms,
wireless messages and other written memoranda,
including requests, orders, instructions and process
of the Secretary of State, the Department of State,
and also of its consular or other agent or agents in
vs. United States of America 241
Jai)aii, addressed or sent to Tom C. Clark, as the
Attorney General, or to the Department of Justice
or agents of said Department, the Supreme Com-
mander, Allied Powers (SCAP), Tokyo, Japan, the
Commander of the U. S. Eighth Army, in Japan,
the Counter Intelligence Corps, U. S. Army, Japan,
the Commanding Officer of Sugamo Prison in
Tokyo, Japan, and the replies received thereto from
said officers, departments or agents, between on or
about August 15, 1945, to and including September
25, 1948, authorizing, directing or requesting the fol-
lowing things: — the arrest of the defendant on or
about September 5, 1945, at Yokohama, Japan, by
agents of the U. S. ; her detention there until Sep-
tember 6, 1945, and her then release therefrom ; the
arrest of the defendant on or about October 16,
1945, at Tokyo, Japan, by agents of the U. S. and
her imprisonment by them at the Yokohama Prison
in Yokohama, Japan, until November 16, 1945, and
thereafter from then to October 25, 1946, at the
Sugamo Prison in Tokyo, Japan, and her then re-
lease therefrom; her arrest on or about August 26,
1948, at Tokyo, Japan, by agents of the U. S., and
imprisonment in Sugamo Prison, Tokyo, Japan,
and her transportation therefrom to the S. S. Gen-
eral F. R. Hodges, a U. S. transport vessel, and
thence to San Francisco, California, by said vessel
which here arrived on September 25, 1948; or re-
lating to any of said things.
4. Any and all written charges, accusations or
complaints made, brought or filed by authority of
242 Iva Ikuko Toguri D' Aquino
the plaintiff, the United States, including the
United States Army, SCAP, the U. S. Eighth
Army, the Counter Intelligence Corps of the U. S.
Army in Japan, the Attorney General, the Depart-
ment of Justice, and the State Department in
Japan, against the defendant between August 13,
1943, and September 25, 1948, together with any
and all records made or kept of any and all exam-
inations, hearings or trials of the defendant had
thereon and the disposition made thereof.
5. The original records, or copies thereof, of the
Sugamo Prison and Yokohama Prison relating to
the defendant which heretofore were delivered or
sent to you, the ^Attorney General or the Depart-
ment of Justice by the authorized custodian thereof
from Japan subsequent to the time in April or
May of 1949, when access thereto and examination
thereof were denied to Theodore Tamba, Esq., who
was acting as counsel for and on behalf of the
defendant, and when the taking of the deposition
thereon of such custodian by said Theodore Tamba,
Esq., relating thereto was refused by such cus-
todian, and, in particular, those records, letters,
messages, files, letters, instructions and process re-
lating to the arrests, incarcerations and releases of
the defendant from imprisonment as mentioned in
paragraphs 1, 2, 3 and 4 hereinabove.
6. Any and all radio script, or copies thereof,
the plaintiff asserts or claims was prepared, com-
posed, written, typed, used, read, announced or
vs. United States of America 243
broadcast by radio by the defendant between about
November 1, 1943, and on or about August 13, 1945,
at or from Radio Tokyo or Radio Station JO AK
in Japan.
7. Any and all phonographic recordings the
plaintiff asserts or claims to be made of the defend-
ant's voice between about November 1, 1943, to on
or about August 13, 1945, and since then.
8. Any and all musical records or recordings the
plaintiff asserts or claims the defendant played or
broadcast or caused to be played or broadcast be-
tween about November 1, 1943, and August 13, 1945,
from Radio Tokyo or Radio Station JOAK in
Japan.
9. Any and all statements in writing made, exe-
cuted, signed or initialed by the defendant for the
plaintiff or for any agent or agents of the plaintiff
or for any other person or persons or asserted or
claimed by the plaintiff to have been made by the
defendant between Aug. 15, 1945, and Sept. 25,
1948, relating to her life, employment and conduct
in Japan from about July 1, 1941, to about Sep-
tember 25, 1948.
10. Any and all oral statements the plaintiff
asserts or claims was made by the defendant to the
plaintiff or to any agent or agents of the plaintiff
or any other person or persons between August 15,
1945, and Sept. 25, 1948, and transcribed or reduced
to writing relating to her life, employment and
244 Iva Ikuko Toguri D^ Aquino
conduct in Japan from about July 1, 1941, to about
Sept. 25, 1948.
11. Any and all other records of the plaintiff or
U. S. Government departments or agents bearing
on this case.
This subpoena is issued on application of the
defendant.
C. W. CALBREATH,
Clerk.
[Seal] By /s/ [Indistinguishable]
Deputy Clerk.
Returns on service of copy attached.
[Endorsed] : Filed June 22, 1949.
I
4
vs. United States of America 245
District Court of the United States, Northern
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Wednesday, the 22nd day of Jime, in the year
of our Lord one thousand nine hundred arid forty-
nine.
Present : The Honorable Michael J. Roche,
District Judge.
[Title of Cause.]
ORDER
(Minute order quashing subpoena duces
tecum issued to Mr. DeWolfe;
Minute order denying defendant's motion to
produce.)
Case came on for hearing on motion to produce.
Defendant was present in custody of U. S. Marshal
and with her attorney, Wayne Collins, Esq. Tom
DeWolfe, Esq., Special Assistant to the Attorney
General, was present for the United States. Mr.
DeWolfe made a motion to quash subpoena duces
tecum issued to him. After hearing the arguments
of the attorneys, it is Ordered that the said motion
be granted; and that the defendant's motion to
produce be denied.
246 Iva Ikuko Toguri B' Aquino
[Title of District Court and Cause.]
Appearance
Mr. Clerk:
Enter our appearance as attorneys for the de-
fendant in the above-entitled case.
Dated at San Francisco, Cal., on 5th day of July,
1949.
/s/ WAYNE M. COLLINS,
/s/ THEODORE TAMBA,
/s/ GEORGE OLSHAUSEN.
[Endorsed] : Filed July 5, 1949.
I
vs. United States of America 247
District Court of the United States, Northern
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Friday, the 12th day of August, in the year of
our Lord one thousand nine hundred and forty-nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause.]
ORDER
(Minute order that oral motion for judg-
ment of acquittal be continued to August 13,
1949.)
The defendant, the attorneys, and the jurors im-
panelled herein being present as heretofore, the
further trial of this case was this day resumed.
Robert Cowan, Mariano Villarin, Chas. Hall and
Richard Henschel were sworn and testified on be-
half of the United States. Mr. De Wolfe introduced
in evidence and filed U. S. Exhibit No. 44. The
United States then rested. Mr. Olshausen made a
motion for judgment of acquittal. It is Ordered
that this case be continued to August 13, 1949, at
9:00 a.m., for further trial.
248 Iva Ikuko Togiiri B' Aquino
District Court of the United States, Northern
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Saturday, the 13th day of August, in the year of
our Lord one thousand nine hundred and forty-nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause.]
ORDER
(Minute order denying defendant's motion
for judgment of acquittal.)
The defendant and the attorneys being present
as heretofore, the further trial of this case was this
day resumed. The jurors were not present. The
Court proceeded to hear the arguments on the de-
fendant's motion for a judgment of acquittal. After
hearing the arguments of Mr. Olshausen and Mr.
De Wolfe, it is Ordered that said motion be denied.
It is Ordered that this case be continued to August
15, 1949, at 10 a.m., for further trial.
vs. United States of America 249
[Title of District Court and Cause.]
MOTION FOR ORDER FOR PRODUCTION,
EXAMINATION AND INSPECTION OF
RECORDS AND SCRIPTS
Defendant, supplementing her oral motions here-
tofore made during the course of the prosecution's
case, moves for the order of this Court requiring
the plaintiff to produce in court and to permit the
defendant to examine and inspect the following:
1. The five phonographic recordings to which
the prosecution's witness Sam Cavanar testified to
on his direct examination, commencing on line 16
of page 2226 down to and including line 4 on page
2227 of the reporter's transcript, Vol. XXI, of
August 3, 1949, and on line 7 of page 2227 thereof
down to and including the material on line 15
thereof on cross-examination.
2. The five phonographic recordings to which
the prosecution's witness William Halbert Thomp-
son testified to on his direct examination, com-
mencing on line 18 of page 2250 down to and
including the material on line 9 on page 2251 of
the reporter's transcript. Vol. XXI, of August 3,
1949, and the material mentioned on line 15 of page
2273 of said transcript down to and including the
material on line 8 of page 2274 thereof relating to
the cross-examination of said witness.
3. The five phonographic recordings of programs
of the Zero Hour program, or parts thereof, doliv-
250 Iva Ikuko Togiiri D^ Aquino
ered into the possession of the plaintiff, or its agent
Fred Tillman or agents of the plaintiff in Japan
during the latter part of 1948 or during the early
part of 1949 by Ruth Hayakawa.
4. The radio scripts and the motion picture, to-
gether with its sound recording tract, insofar as the
said motion picture incorporates the said radio
scripts of the defendant to which the witness Rob-
ert Cowan testified on August 12, 1949, on his direct
examination, at pages 2810, line 16 to 24, inclusive,
page 2824, lines 17 to 25 inclusive, page 2825, lines
1 to 3, inclusive, page 2827, lines 5 to 25 inclusive
and page 2828, lines 1 to 3 inclusive on his cross-
examination, said page and line references appear-
ing in the reporter's transcript of the trial herein
on August 12, 1949, transcript No. XXVI.
Dated: August 13, 1949.
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN,
/s/ THEODORE TAMBA,
Attorneys for Defendant.
Receipt of copy acknowledged.
[Endorsed] : Piled August 13, 1949.
i
vs. United States of America 251
District Court of the United States, Northern
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Monday, the 19th day of September, in the year
of our Lord one thousand nine hundred and forty-
nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause.]
ORDER
(Minute order denying motion to strike cer-
tain testimony; to strike U. S. Exhibits Nos. 2
and 15; to dismiss Indictment; and motion for
acquittal.)
The defendant, the attorneys and the jurors im-
panelled herein being present as heretofore, the
further trial of this case was this day resumed.
Frances Roth, Rafael Velasquez, Sr., and Rafael
Velasquez, Jr., were sworn and testified on behalf
of the United States. Mr. Knapp introduced in
evidence and filed U. S. Exhibits Nos. 63-75. The
United States rested its case in rebuttal. Both sides
rested. The attorneys for the defendant made the
following motions: to strike certain testimony; to
strike U. S. Exhibits numbered 2 and 15; to dismiss
252 Ivd Ikuko Toguri D' Aquino
the indictment; and motion for acquittal. After
hearing the arguments of the attorneys, it is
Ordered that each of said motions be denied. It
is Ordered that this case be continued to September
20, 1949, at 10 o'clock a.m. for further trial, and
the jury after being duly admonished by the Court
was excused mitil said time.
District Court of the United States, Northern
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Monday, the 26th day of September, in the year
of our Lord one thousand nine hundred and forty-
nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause.]
ORDER
(Minute Order re: Court's instruction to
jury; Aileen McNamara, alternate juror, ex-
cused from further service; Marshal instructed
to provide meals and lodging for jurors and
two deputy marshals, etc.)
The defendant, the attorneys, and the jurors im-
panelled herein being present as heretofore, further
vs. United States of America 253
trial of this case was this day resumed. After hear-
ing the instructions of the Court, the jury at 11 :43
a.m. retired to deliberate upon its verdict. It is
Ordered that alternate juror Aileen McNamara be
excused from further service. It is Ordered that
the U. S. Marshal furnish meals and lodgings for
the jurors and two Deputy Marshals. At 2 :41 p.m.
the jury returned into the Courtroom, requested
and received the written instructions of the Court,
by stipulation. At 2 :44: p.m. the jury again retired
to deliberate upon its verdict. At 11:20 p.m. the
jury retired for the night. Ordered case continued
to September 27, 1949, for further trial.
District Court of the United States, Northern
District of California, Southern Division
At A Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Tuesday, the 27th day of September, in the year
of our Lord one thousand nine hundred and forty-
nine.
Present: The Honorable Michael J. Roche,
District Judge.
254 Iva Ikuko Toguri D' Aquino
[Title of Cause.]
ORDER
(Minute order — re portions of transcript and
exhibit requested by and delivered to jury;
etc.)
The defendant, the attorneys, and the jurors im-
panelled herein being present as heretofore, the
further trial of this case was this day resumed. At
11:42 a.m. the jury returned into Court, requested
and received certain portions of the transcript. At
11 :46 a.m. the jury again retired to deliberate upon
its verdict. At 2:35 p.m. the jury returned into
Court, requested and received certain portions of
the transcript. At 2:36 p.m. the jury again retired
to deliberate upon its verdict. At 3 :56 p.m. the jury
returned into Court, requested and received U. S.
Exhibit No. 15. At 3 :58 p.m. the jury again retired
to deliberate upon its verdict. At 10:15 p.m. the
jury retired for the night. Ordered case continued
to September 28, 1949, for further trial.
District Court of the United States, Northern
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
vs. United States of America 255
on Thursday, the 29th day of September, in the
year of our Lord one thousand nine hundred and
forty-nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause.]
ORDER
(Minute order — re Jury requesting and re-
ceiving certain volumes of testimony, and fur-
ther instructions of the Court; Jury's verdict
and Special Findings, etc.)
The defendant, the attorneys, and the jury im-
panneled herein being present as heretofore, the
further trial of this case was this day resumed. At
11:40 a.m .the jury returned into Court, requested
and received certain volumes of testimony. At 11 :43
a.m. the jury again retired to deliberate upon its
verdict. At 5 :38 p.m. the jury returned into Court,
requested and received further instructions. At
5:40 p.m. the jury again retired to deliberate upon
its verdict. At 6:04 p.m. the jury returned into
Court and upon being asked if they had agreed
upon a verdict, replied in the affirmative and re-
turned the following verdict and Special Findings
which were ordered filed and recorded:
**We, the Jury, find as to the defendant at the
bar as follows : Guilty.
s/ JOHN MANN,
Foreman."
256 Iva Ikuko Toguri D^ Aquino
^^ Special Findings by the Jury
In accordance with the instruction already given
by the Court, the jury makes the following findings :
I.
Did the jury find overt act 1., as it is laid in
the indictment, a treasonable act committed by the
defendant D 'Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No .
II.
Did the jury find overt act 2., as it is laid in
the indictment, a treasonable act committed by the
defendant D 'Aquino mth an intent to betray the
United States? (Answer, in writing, yes or no.)
No
III.
Did the jury find overt act 3., as it is laid in
the indictment, a treasonable act committed by the
defendant D 'Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
IV.
Did the jury find overt act 4., as it is laid in
the indictment, a treasonable act committed by the
defendant D 'Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
V.
Did the jury find overt act 5., as it is laid in
the indictment, a treasonable act committed by the
vs. United States of America 257
defendant D 'Aquino with an intent to betray the
United States'? (Answer, in writing, yes or no.)
No
VI.
Did the jury find overt act 6., as it is laid in
the indictment, a treasonable act committed by the
defendant D 'Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
Yes
VII.
Did the jury find overt act 7., as it is laid in
the indictment, a treasonable act committed by the
defendant D 'Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
VIII.
Did the jury find overt act 8., as it is laid in
the indictment, a treasonable act committed by the
defendant D 'Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
San Francisco, California,
Sept. 29, 1949.
/s/ JOHN MANN,
Foreman."
The jury upon being asked if said verdict and
Special Findings were its verdict and Special Find-
ings, each juror replied that it was. The jury was
polled. Ordered that the jury be discharged from
further consideration hereof and be excused. On
258 Iva Ikuko Toguri D' Aquino
motion of Mr. Collins, it is ordered that this case
be continued to October 6, 1949, for judgment.
[Title of District Court and Cause.]
SPECIAL FINDINGS BY THE JURY
In accordance with the instruction already given
by the Court, the jury makes the following findings:
I.
Did the jury find overt act 1., as it is laid in
the indictment, a treasonable act committed by the
defendant D 'Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
II.
Did the jury find overt act 2., as it is laid in
the indictment, a treasonable act committed by the
defendant D 'Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
III.
Did the jury find overt act 3., as it is laid in
the indictment, a treasonable act committed by the
defendant D 'Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
IV.
Did the jury find overt act 4., as it is laid in
the indictment, a treasonable act committed by the
vs. United States of America 259
defendant D 'Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
V.
Did the jury find overt act 5., as it is laid in
the indictment, a treasonable act committed by the
defendant D 'Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
VI.
Did the jury find overt act 6., as it is laid in
the indictment, a treasonable act committed by the
defendant D 'Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
Yes
VII.
Did the jury find overt act 7., as it is laid in
the indictment, a treasonable act committed by the
defendant D 'Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
VIII.
Did the jury find overt act 8., as it is laid in
the indictment, a treasonable act committed by the
defendant D 'Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
San Francisco, California, Sept. 29, 1949.
/s/ JOHN MANN,
Foreman.
[Endorsed] : Filed September 29, 1949.
260 Iva Ikuko Toguri D^ Aquino
In the Southern Division of the United States
District Court for the Northern District of
California, First Division
No. 31712-R
THE UNITED STATES OF AMERICA
vs.
IVA IKUKO TOGURI D 'AQUINO
VERDICT
We, the Jury, find as to the defendant at the bar
as follows:
Guilty.
/s/ JOHN MANN,
Foreman.
[Endorsed] : Filed September 29, 1949.
vs. United States of America 261
[Title of District Court and Cause.]
MOTION FOR ARREST OP JUDGMENT
UNDER RULE 34
Defendant moves the court for an order arresting
judgment under Rule 34 of the Rules of Criminal
Procedure for the District Courts of the United
States upon each of the following grounds:
1. The indictment does not state a public offense.
2. The court is without jurisdiction of the of-
fense charged upon the ground that the Northern
District of California is not the District to which
defendant was first brought; on the contrary, the
first territory under American jurisdiction to which
defendant w^as first brought was the Island of
Okinawa.
3. The court has no jurisdiction of the offense
upon the ground that the indictment was based
upon perjured and suborned testimony.
4. The court has no jurisdiction over the person
of the defendant.
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN,
/s/ THEODORE TAMBA,
Receipt of copy attached.
[Endorsed] : Piled October 3, 1949.
262 Iva Ikuko Toguri D' Aquino
[Title of District Court and Cause.]
MOTION FOR ACQUITTAL OR NEW TRIAL
UNDER RULE 29 (b)
Defendant hereby moves the court to set aside
the verdict of guilty heretofore entered and to enter
a judgment of acquittal or alternatively to grant a
new trial under Rule 29(b) of the Rules of Criminal
Procedure for the District Courts of the United
States. Said motion will be made upon the ground
that the evidence is insufficient to sustain the ver-
dict of guilty and in particular is deficient upon
each of the following grounds, among others:
1. Defendant's imprisonment in Japan upon
suspicion of treason from September, 1945, until
October, 1946, and her release on the latter date, if
construed as arrest and release upon the charges
contained in the indictment, show that the question
of defendant's guilt or innocence has previously
been passed upon and is now res judicata or that
defendant has been once put in jeopardy. If con-
strued as not based upon charges, said imprison-
ment for more than one year without charges after
an arrest on suspicion of treason constituted a de-
nial of a speedy trial in violation of Amendment VI
to the United States Constitution.
2. The said imprisonment of the defendant for
more than one year in Japan on suspicion of treason
but without filing of charges coupled with the loss
of material evidence as testified to by witness Rob-
vs. United States of America 263
ert Cowan constituted a denial of the right of a
speedy trial in violation of Amendment VI to the
U. S. Constitution.
3. Prosecution of defendant upon partial evi-
dence after known loss of evidence by agents of the
government as testified to by witness Robert Cowan
constitutes denial of due process of law in violation
of Amendment V to the U. S. Constitution.
4. Playing of the recordings contained in Ex-
hibits 16 to 21 with earphones only for a judge,
jury, defendant, counsel and members of the press
but not for the public spectators so that such play-
ing was inaudible to the public constituted denial
of a public trial to the defendant in violation of
Amendment VI to the U. S. Constitution.
5. Withholding by the government of the re-
ports of witnesses Frederick G. Tillman and John
El don Dunn of their interviews with Norman
Reyes after the said witnesses have given direct
testimony on this subject on rebuttal when such
report was otherwise properly within the scope of
the cross-examination of said witnesses constitutes
a denial of due process of law in violation of
Amendment V to the U. S. Constitution.
6. The uncontradicted evidence from the wit-
nesses of both prosecution and defense that the de-
fendant brought food, tobacco and medicines to the
Allied prisoners of war creates a reasonable doubt
264 Iva Ikuko Toguri D' Aquino
upon the issue of intent which must be declared by
the court.
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN, *
/s/ THEODORE TAMBA,
Points and Authorities:
TJ. S. V. McWilliams, 163 Fed. (2d) 695.
Curley v. U. S., 160 Fed. (2d) 229.
Receipt of copy attached.
[Endorsed] : Filed October 3, 1949.
[Title of District Court and Cause.]
MOTION FOR NEW TRIAL
UNDER RULE 33
Defendant moves the court to set aside the ver-
dict of guilty heretofore entered and to grant a new
trial under Rule 33 of the Rules of Criminal Pro-
cedure for the District Courts of the United States
upon each of the following grounds:
A. Errors of law in rulings on evidence excepted
to by defendant.
B. Errors of law in the giving and refusal of
instructions excepted to by defendant.
C. Misconduct of the prosecuting attorney ex-
cepted to by defendant.
vs. United States of America 265
Said grounds will include but will not be limited
to the following:
1. The court erred in admitting Exhibit 24.
2. The court erred in admitting Exhibits 2
and 15.
3. The court erred in admitting fragmentary
testimony upon the issue of intent which was of-
fered by the Government in a way so as to make
it impossible for defendant to show the context. In
particular, the court erred in admitting Exhibits 16
to 21, 25 and the testimony of each of the following
witnesses :
Gilbert V. Velasquez
Ted Sherdeman
Jules I. Sutter
Marshall Hoot
Sam Cavanar
William Halbert Thompson
David I. Gilmore
Robert Cowan
Charles F. Hall
Richard Henschel
Hishashi Moriyama
George Hideo Mitsushio (^^cold water sure tastes
good/' etc.)
Shinjiro Igarashi
Motomu Nii
Mary Higuchi (second appearance)
Mariano S. Villarin
266 Iva Ikuko Toguri D^ Aquino
4. The giving of Instruction No. 22 telling the
jury as a matter of law that Satoshi Nakamura was
a witness to Overt Act 6.
5. Misstatement of the record in the argument
of the prosecuting attorney in stating that Clark
Lee testified to an alleged admission with respect to
Overt Act No. 6.
6. Error in permitting cross-examination of the
defendant relative to the truth or falsity of other
witnesses.
7. Exclusion of e\ddence of duress upon persons
other than defendant and of evidence of conse-
quence of disobedience of Army orders.
8. Errors in permitting cross-examination of
defendant with respect to Overt Act 8 on which
defendant had not testified which was used as the
basis for impeaching evidence and later used in the
argument of the prosecution to impeach defendant's
entire testimony.
9. Misconduct of the prosecutor in his argument
to the jury in misstating testimony of P. Harris
Sugiyama.
10. Misconduct of the prosecuting attorney in
his argument to the jury in using Exhibit 52 as
affirmative evidence rather than merely going to
the impeachment of the witness, Norman Reyes,
and failure of the court to give a limiting instruc-
tion when requested to do so at the time of the
argument.
vs. United States of America 267
11. Exclusion of evidence as to the nature of
the program broadcast by Myrtle Liston from
Manila from the depositions of the witness Ken
Murayama.
12. Exclusion of evidence tendered by the de-
fendant as to the nature of broadcasts at hours
other than 6 :00 to 7 :00 p.m., Tokyo time, after the
prosecution had been permitted to show the con-
tents of alleged broadcasts ranging on Tokyo time
from 3 :00 p.m. until midnight.
13. Repeated refusal by the court to permit de-
fendant to make offers of proof after objections
sustained to questions put to defendant's witnesses
on direct examination.
14. Error in permitting questions calling for
conclusions in the cross-examination of Norman
Reyes.
15. Error in permitting questions calling for
conclusions in the cross-examination of the defend-
ant.
16. Exclusion of defendant's exhibit number BIT
for identification making the Geneva Convention
applicable during World War II as between the
United States and Japan both to prisoners of war
and to interned civilians.
17. Error in refusing defendant's requested in-
structions relating to the Geneva Convention.
18. Exclusion of defendant's exhibit for identi-
268 Iva Ikuko Toguri D' Aquino
fication BQ and BR, (Harry Brundidge's travel
orders and passport).
19. Exclusion of those parts of the deposition
of the witness Toshi Katsu Kodaira relating to the
activities of Harry Brundidge in bribing or at-
tempting to bribe witnesses against the defendant.
20. Exclusion of defendant's exhibit BT for
identification (government subpoenas).
21. Exclusion of the testimony of the witness
Kamini Kant Gupta to the effect that Army authori-
ties considered the Zero Hour program a morale
building program for the American troops.
22. Exclusion of defendant's exhibit BV for
identification (Navy citation).
23. Refusal of each of the following instructions
requested by defendant: 30A, 38, 39, 48, 49, 50, 65,
70, 71, 74, 75, 76, 79, 84, 85, 88, 92 to 104, 106 to
109, 110, 111, 112 to 138, 140, 139, 155, 156, 157, 161
to 169.
24. The giving of each of the following instruc-
tions (court's numbering) on the grounds hereto-
fore specified in exceptions to the instructions: 8,
19, 25, 27, 38, 44, 45, 47, 50, 57.
25. Misconduct of the prosecuting attorney in
arguing to the jury that this case should be a warn-
ing to others and that there may be other prosecu-
tions.
vs. United States of America 269
26. Misconduct of the prosecuting attorney in
sneering, bullying cross-examination, misstating the
record to witnesses.
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN,
/s/ THEODORE TAMBA,
Receipt of copy attached.
[Endorsed] : Filed October 3, 1949.
[Title of District Court and Cause.]
POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR NEW TRIAL UNDER
RULE 33
The following points are numbered to correspond
with the numbers of the grounds for the motion:
1.
Exhibit N shows that at the time Exhibit 24 was
taken, defendant had been in custody from Sep-
tember, 1945, to April, 1946; that she was released
by the Army and turned over to agent Frederick
G. Tillman for the purposes of interrogation. A
statement taken while defendant is held for the
purposes of interrogation after only six days of
confinement is inadmissible. Upshaw v. U. S., 335
U. S. 410, 93 L. Ed. Adv. Ops. 129 (reversed for
that error alone).
270 Ivalkuko Toguri D' Aquino
4.
Instruction No. 22 told the jury categorically that
Nakamura was a witness to Overt Act No. 6, instead
of leaving it to the jury to decide whether or not
he was testifying to the same incident as that de-
scribed by Oki and Mitsushio.
Gardner v. Babcock, 70 U. S. 240, 18 L. Ed.
31, 33.
^'The court could not tell the jury that any legal
results followed from the evidence which only
tended to prove the issue to be tried." [Emphasis
added.]
It was therefore error to withdraw the question
from the jury whether Nakamura was testifying to
the same or a different incident.
5.
Overt Act No. 6 concerned the battle of Leyte
Gulf (Oki IX— 680-81, Mitsushio XI— 971, 974).
Clark Lee testified about a fighter sweep off For-
mosa (VII— 485, VIII— 572). His is not testimony
*Ho the same overt act." In the oral argument, how-
ever, the U. S. attorney named Clark Lee as a cor-
roborating witness to Overt Act 6 (the argument
has not yet been transcribed) clearly misstating the
record. Exception was taken (LIV — 5940) — but the
same argument was repeated later. The jury then
requested leave to ^^ examine . . . the transcripts of
the testimony of the following relative to Overt
Acts 5 and 6: Clark Lee, Oki, Mistushio" (LIV—
6001) showing they had been influenced by the
prosecutor's misstatement of the record. They re-
vs. United States of America 271
ported themselves unable to agree but ultimately
convicted on Overt Act 6 alone. Statements of the
prosecution outside or contrary to the record are in
themselves reversible error. Taliaferro v. U. S., 47
Fed. (2d) 699 (CCA9), followed in Minker v. U. S.,
85 Fed. (2d) 425, 426-7 (CCA 3). See also Berger
V. U. S., 295 U. S. 78, 84, 79 L. Ed., 1314, 1319
(Misstatement of evidence in questions).
6.
The defendant was repeatedly asked to character-
ize the testimony of other witnesses as '^accurate,"
^Hrue," ^^ false" or ^4n error" XL VII— 5249,
5258-9, 5301-2, XLIX— 5405-6, 5428 (in effect),
5436-7, (Overt Act 6).
At the following places the characterization of
another witness's testimony was insinuated:
XL VIII— 5368-9, 5371-2, 5375-7, 5381.
XLIX— 5396-7, 5403-4, 5407, 5451-2, 5455-6, 5458-
67, 5474-5, 5477, 5490-91.
Such cross-examination is improper. State v.
Schleifer, 102 Conn. 708, 130 Atl. 184, 191; State
V. Bradley, 134 Conn. 102, 55 Atl. (2d) 114, 120;
Williams V. State, 17 SW (2d) 56, 58, (Tex. App.) ;
Temple v. Duran, 121 SW 253, 255 (Tex. App.).
See also McDowell v. U. S., 74 Fed. 403, 407 (im-
proper to cross-examine on another person's state-
ment). It may constitute prejudicial error (State
V. Schleifer, 130 Atl., 184, 191 supra). In the pres-
ent case it was undoubtedly prejudicial because of
its frequent repetition and because it was used spe-
272 Iva Ikuko Toguri D^ Aquino
cificaUy respecting Overt Act 6 (XLIV— 5436-7).
Where objections to a line of questions are repeat-
edly overruled, it is not necessary to object to every
question. Wilson v. U. S., 4 Fed. (2d) 888, 889. At
XL VIII — 5377 the court stated that it had repeat-
edly overruled objections to these questions.
8.
Defendant gave no direct testimony on Overt Act
No. 8. Nevertheless she was cross-examined upon
it (XLIX — 5440-5446). Her answers were used as
basis for impeachment by the witness Roth and
Exhibit 63 (LII — 5852). On argument this evidence
was then used to impeach defendant's entire testi-
mony. A defendant testifying to only one part of
a charge, cannot be cross-examined on another part.
Tucker v. U. S., 5 Fed. (2d) 818, 822, 824. Defend-
ant having given no direct testimony on Overt Act
8, could not be cross-examined regarding it. Since
the sequel of the cross-examination was used in
argument to impeach defendant's entire testimony,
the error is prejudicial despite the acquittal on
Overt Act 8.
9.
The testimony of Sugiyama was misstated to
change its sense. Exception taken LIV — 5490, mis-
conduct within the principle of Taliaferro v. U. S.,
47 Fed. (2d) 699, supra; Berger v. U. S., 295 U. S.
78, supra.
10.
Exhibit 52 was limited to impeachment of the
credibility of witness Reyes (XXXIII— 3779). On
vs. United States of America 273
the oral argument this exhibit was repeatedly used
as proving facts in the case. We twice requested
instructions that it could not be used that way
(LIV — 5939, 5941). In neither instance was the re-
quested instruction given. Misconduct falls within
principle of Taliaferro v. U. S. and Berger v. U. S.
11-12.
The prosecution offered evidence of broadcasts
ranging on Tokyo time from 3 :00 p.m. (Hoot XX —
2136-7, 2142— Gilbert Islands 6:00-7:00 p.m.) to
midnight (Herschel XXVI— 2960, 2988— Ley te,
9:00-11:00 p.m.). See in this connection defend-
ant's Exhibit T, world time map.
The defense, however, was limited to rebuttal
testimony covering only the hour 6:00-7:00 p.m.,
Tokyo time. See parts re Myrtle Liston, excluded
from Ken Murayama's deposition, (XLIII — 4727-
8) and the following: Schenk XXXVI— 4060-61 ;
Matsui XXXVI— 4126-30, 4143-4; Cox XXXVII—
4264-5; Welker XXXVIII— 4387-98 ; Hagedorn
XXXVIII— 4412-4424, 4337 (defendant's Exhibit
Z for identification) ; Gallagher XXXIX— 4376-7,
4380-85.
13.
An offer of proof must be made after objection
sustained to a question on direct examination. See
1 Widmore on Evidence (3rd ed.) sec. 20, pp. 361
ff., Rules Grim. Proc. 26, adopting the common law;
also Rules Civ. Proc. 43 (c). Defendant proposed
making offers of proof in absence of jury, XXXVII
— 4291-2. Opportunity to make offers of proof was
274 Iva Ikuko Toguri B' Aquino
denied at the following places: XXXV— 3957-8
(Reyes) , XXXVIII— 4293-4303 ; (Kalbfleisch)
XXXIX— 4341-2 (Stanley). Where the defendant
is thus prevented from completing a record to show
prejudice, it is reversible error. Compare People
V. Sarrazawski, 27 Cal. (2d) 7, 161 Pac. (2d) 934;
People V. Stevanson, 103 Cal. App. 82, 284 Pac. 487.
25.
Exception taken LIV— 5939, 5941. Turk v. U. S.,
20 Fed. (2d) 129, holds similar argument reversible
error even after instruction to disregard.
26.
In cross-examination of defendant: XL VIII —
5256-7 (distorting testimony of government witness
Kuroishi, XXI— 2280-85) ; XL VIII— 5385; XLIX
— 5394-5, 5401 (attempting to make defendant deny
facts previously testified to by government witness
Tsuneishi, IV— 251, VI— 412); XLIX— 5458-9
(misstatement of Cousens' testimony XXX —
3432-3) ; L — 5540-44 (attempting to make defendant
deny facts already in evidence as Government Ex-
hibit 9. This line of examination begins with the
sneer *'You talk, Mrs. d 'Aquino, about filing appli-
cations for re-establishment of your American citi-
zenship''—L— 5540) ; XL VII— 5310 (attempting to
make defendant deny facts previously testified to
by government witness Tsuneishi, V — 321).
vs. United States of America 275
This type of misconduct is covered by Berger v.
U. S., 295, U. S. 78, 84.
Respectfully submitted,
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN,
/s/ THEODORE TAMBA.
Receipt of copy attached.
[Endorsed] : Piled October 3, 1949.
[Title of Distrijgt Court and Cause.]
SUPPLEMENTAL GROUND IN SUPPORT
OF MOTION HERETOFORE FILED FOR
ACQUITTAL OR NEW TRIAL UNDER
RULE 29 (b)
7. The prosecution of defendant while institut-
ing no prosecution against government witnesses
Mitsushio and Moriyama who claimed to have be-
come Japanese citizens in 1942 when it was impos-
sible to do so and who according to their own
testimony participated on the same program as
defendant was a denial of equal protection guar-
anteed by Amendment V to the United States Con-
stitution and elaborated in Yick Wo vs. Hopkins,
118 U. S. 356.
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN,
/s/ THEODORE TAMBA.
Receipt of copy attached.
[Endorsed] : Filed October 5, 1949.
276 Iva Ikuko Toguri V Aquino
[Title of District Court and Cause.]
SUPPLEMENTAL AUTHORITIES ON
MOTION FOR NEW TRIAL UNDER RULE 33
1. Bram v. U. S., 168 U. S. 532, 541— statement
of accused made to officers is to be treated as con-
fession regardless or whether it is partly exculpa-
tory.
Followed in Ashcraft v. Tenn., 327 U. S. 274, 278,
90 L. Ed. 667, 670.
2. Pierce v. U. S., 86 Fed. (2d) 949, 953— speak-
ing of prejudicial suggestions by prosecutor ''that
it was intended to prejudice the jury is sufficient
ground for a conclusion that in fact it did so.''
(Judgment reversed despite trial court's instruc-
tion to disregard.)
Beck V. U. S., 33 Fed. (2d), 107, 114— prosecu-
tor's questions leaving impressions ''not intended
by the witness."
U. S. V. Nettl, 121 Fed. (2d), 927, 930— questions
assuming the existence of damaging facts; alleged
good motive of prosecutor immaterial.
3. Exhibit 63 was not offered to rebut claim of
no propaganda on program (as stated by counsel
for prosecution on oral argument on this motion) ;
the exhibit offered for that purpose was No. 75
(Vol LII, p. 5859).
4. Rule 43 (c) of Civil Procedure does not give
the judge discretion to reject an offer of proof; it
vs. United States of America 277
gives him discretion only (a) to require the offer
to be made out of the presence of the jury, or (b)
to add to the offer.
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN,
/s/ THEODORE TAMBA.
Receipt of copy attached.
[Endorsed] : Filed October 6, 1949.
[Title of District Court and Cause.]
MEMORANDUM ON BEHALF OF UNITED
STATES IN OPPOSITION TO DEFEND-
ANT'S MOTIONS FOR A NEW TRIAL,
JUDGMENT OF ACQUITTAL, AND IN
ARREST OF JUDGMENT.
Motion In Arrest Of Judgment
Matter alleged as ground in arrest of judgment
must be such as would have been sufficient on motion
to dismiss. Hillegas v. U. S., 183 F. 199, cert. den.
219 U. S. 585, 55 L. ed. 347; U. S. v. Maxey, 200 F.
997. The motion must be based on matters appear-
ing in the record which does not include the evi-
dence or the charge. Horwitz v. U. S., 5 F. 2d 129 ;
Demolli v. U. S., 144 F. 363; Loewenthal v. U. S.,
274 F. 563. Plainly, the general rule is that judg-
ment in a criminal case will, after conviction, be
arrested only for matters appearing of record which
278 Iva Ikuko Toguri D' Aquino
would render the judgment, if entered, erroneous;
the evidence being no part of the record for such
purpose. Horwitz v. U. S., 5 P. 2d 129, 131.
Defects in the indictment must be substantial, and
not of form; the latter are deemed to be cured by
the verdict. F. R. Crim. P. 52; Hall v. U. S., 277
P. 19; Gibson v. U. S., 31 P. 2d 19, cert. den. 279
U. S. 866, 73 L. ed. 1004; Brewer v. U. S., 290 P.
807 ; Gay v. U. S., 12 P. 2d 433. A motion in arrest
will not lie for failure to prove venue. Piacenza v.
U. S., 293 P. 164.
Motion Por Judgment Of Acquittal
The weight of conflicting evidence is not for this
court. The question is the sufficiency of the Gov-
ernment's evidence to go to the jury and to sustain
the verdict. May v. U. S., 175 P. 2d 994, 1007.
There being substantial evidence in support of the
indictment, the court would err if it granted de-
fendant's motion for judgment of acquittal. Pierce
V. U. S., 252 U. S. 239, 251, 252, 64 L. ed. 542. The
question whether the effect of the evidence was such
as to overcome any reasonable doubt of ^guilt was
for the jury, not the court, to decide. Pierce v.
U. S., 252 U. S. 239, 251, 252, 64 L. ed. 542. On a
motion for judgment of acquittal, previously known
as a motion for an instructed verdict, the court is
required to approach the evidence from a stand-
point most favorable to the Government, and to
assume the truth of the evidence adduced in support
of the indictment. If on this basis there is substan-
vs. United States of America 279
tial evidence justifying an inference of guilt, irre-
spective of any countervailing testimony that may
have been introduced, the motion for judgment of
acquittal, if interposed prior or subsequent to ver-
dict, must be denied, as a factual jury question only
is involved. U. S. v. Robinson, 71 F. Supp. 9;
Curley v. U. S., 160 F. 2d 229; F. R. Crim. P. 29.
Motion For New Trial
The grant or denial of a motion for new trial
rests in the sound discretion of the federal trial
jurist, and your Honor's denial of defendant's mo-
tion is not reviewable in the absence of a clear show-
ing of an abuse of discretion. Mattox v. U. S., 146
U. S. 140, 36 L. ed. 917.
Conclusion
The post-trial motions should be denied.
Respectfully submitted,
/s/ FRANK J. HENNESSY,
United States Attorney.
/s/ TOM DeWOLFE,
/s/ JAMES W. KNAPP,
Special Assistants to the
Attorney General.
[Endorsed], Filed October 6, 1949.
280 Iva Ikuko Toguri D' Aquino
DEFENDANT'S PROPOSED INSTRUCTIONS
(These instructions have been covered by the
Court in other instructions. Defendant Excepts
on the ground they have not been so covered.)
Defendant's Proposed Instruction No. 19
The jury are the sole judges of the credibility of
and the weight which is to be given to the testimony
of the witnesses testifying at this trial. In weigh-
ing the testimony of each witness they should give
it careful scrutiny and consider all the circum-
stances under which the witness testified; his or
her demeanor on the stand; the relation which he
or she bears to the government ; his or her apparent
candor and fairness, or lack thereof; the reason-
ableness or unreasonableness of his or her story ; the
extent to which he or she is corroborated or con-
tradicted by other credible evidence ; and in short,
any circumstances that tend to throw light upon his
or h(jr credibility.
United States v. Haupt, 47 P. Supp. 836, 840.
Defendant's Proposed Instruction No. 21
In order to justify a verdict of guilty based in
part upon circumstantial evidence, the facts in the
chain of circumstances relied upon must be con-
sistent with the guilt of the accused, and incon-
sistent with every reasonable supposition of in-
nocence. If the facts and circumstances shown by
the evidence are as consistent with innocence as with
vs. United States of America 281
guilt, the jury should acquit the accused. As I shall
instruct you hereafter, there are certain phases of
the case for which circumstantial evidence is insuffi-
cient in law and on which the government is re-
quired to offer direct evidence. On all such issues
you must find for the defendant if you find that the
government has failed to produce the legally re-
quired amount of direct evidence.
Modeled on instruction 7- A in U. S. v. Kawa-
kita. Grim. No. 19,665, U.S.D.C, S.D. Gal.,
Gen. Div.
Defendant's Proposed Instruction No. 27
The defendant, Iva Ikuko Toguri d 'Aquino, is not
charged with levying war against the United States,
so it is not necessary to consider here that aspect
of the crime of treason.
The alleged treason charged in the indictment is
that the defendant adhered to the enemies of the
United States, giving them aid and comfort in
Japan.
Modeled on instruction 11- A given in U. S.
V. Kawakita, Grim. No. 19,665, U.S.D.G.,
S.D. Gal., Gen. Div.
Defendant's Proposed Instruction No. 28
The crime of treason for the purposes of this case
consists of two elements: adherence to the enemy,
and rendering him aid and comfort.
Gramer v. United States, 325 U. S. 1, 29.
282 Iva Ikuko Toguri D' Aquino
Defendant's Proposed Instruction No. 33
The fourth essential element of the charge in the
indictment is the allegation :
That the overt act or acts so committed by the
defendant actually gave aid and comfort to the
enemies of the United States, to wit, the Govern-
ment of Japan.
An overt act may not serve as a basis for convic-
tion of the crime of treason unless the act be trea-
sonable in character. That is to say, the overt act
must be an act which ^^^eally was aid and comfort
to the enemy.''
In the words of the United States Supreme Court
in the case of United States v. Cramer, decided
April 23, 1945 (325 U. S. 1, 34) :
^'The very minimum function that an overt act
must perform in a treason prosecution is that it
show sufficient action by the accused, in its setting,
to sustain a finding that the accused actually gave
aid and comfort to the enemy."
Thus the character of the overt act must be
judged in its setting, in the light of any related
facts and events, in the light of all surrounding
circumstances as shown by all the evidence. Overt
acts o*f related events, may turn out to be acts which
were not of aid or comfort to the enemy.
Modeled on instruction 11-0 given in U. S. v.
Kawakita, Crim. No. 19,665, U.S.D.C, S.D.
Cal., Cen. Div.
vs. United States of America 283
Defendant's Proposed Instruction No. 36
The seventh and eighth essential elements of the
charge set forth in the indictment are :
That such overt act or acts of treason were so
committed at or near Radio Tokyo on the Island of
Honshu, Japan, outside the jurisdiction of any par-
ticular state or district of the United States; and
that the Northern District of California is the dis-
trict of the United States where the defendant was
thereafter first brought.
The burden is upon the prosecution to prove be-
yond reasonable doubt those facts in order to show
that this court — the United States District Court
for the Northern District of California — is the place
provided by law for the trial of the defendant for
the offense of treason charged.
Article III, Sec. 2 of the Constitution of the
United States provides that: ''The Trial of all
crimes . . . shall be held in the State where the
said Crimes shall have been committed; but when
not committed within any State, the Trial shall be
at such Place or Places as the Congress may by
Law have directed.''
Pursuant to the power thus conferred by the
Constitution, the Congress in 1790 enacted in sub-
stance what is today Sec. 102 of Title 28 of the
United States Code, which provides that: ''The
trial of all offenses committed upon the high seas,
or elsewhere out of the jurisdiction of any par-
ticular State or district, shall be in the district
284 Iva Ikuko Toguri V Aquino
where the offender is found, or into which he is first
brought."
The crime of treason charged in the indictment,
if committed by the defendant, was committed in
Japan — ^^out of the jurisdiction of any particular
state or district'' of the United States. The North-
ern District of California covers generally the
Northern portion of the State, including the City
and County of San Francisco.
Modeled on instruction 11-Y given in U. S.
V. Kawakita Criminal No. 19,665, U.S.D.C.,
Southern District of California, Central
Division.
Defendant's Proposed Instruction No. 40
It is a well settled principle of law that a person
cannot, by mere words, be guilty of treason.
Wimmer v. U. S., (CCA-6), 264 Fed. 11-13.
Defendant's Proposed Instruction No. 43
Overt acts cannot rest upon mere inference or
conjecture.
In re Charge to Grand Jury, 30 Fed. Case
No. 18,272, 1 Bond 609.
Defendant's Proposed Instruction No. 51
An act which renders aid and comfort to the
enemy must be an act which actually and substan-
tially strengthened or tended to strengthen the
enemy in the conduct of the war; or an act which
vs. United States of America 285
actually and substantially weakened or tended to
weaken the power of the country to resist or attack
the enemy.
Cramer v. United States, 325 U. S. 1, 29.
Defendant's Proposed Instruction No. 54
Before you can convict the defendant it is neces-
sary that all twelve of you should agree on one and
the same alleged overt act. It is not sufficient if
some of you agree as to one alleged overt act and
others agree as to another.
Defendant's Proposed Instruction No. 55
*'The Court instructs the jury that witnesses tes-
tifying to oral or written statements made by the
defendant before the commencement of this trial,
are not witnesses within the meaning of the consti-
tutional provision which requires two witnesses to
the same overt act for a conviction of treason.
"The court further instructs the jury that neither
oral nor written statements made by the defendant
before the commencement of this trial, which have
been testified to by one or more witnesses, can be
considered by the jury as a substitute for the re-
quirement of the Constitution of the United States
that 'No person shall be convicted of Treason
unless on the testimony of two witnesses to the same
overt act, or on confession in open Court.' "
(U. S. V. Haupt, 136 Fed. (2) 661, 674).
286 Iva Ikuko Toguri D' Aquino
Defendant's Proposed Instruction No. 56
Witnesses testifying to the identity of the voice
contained in the recordings as that of the defendant
are not witnesses within the meaning of the consti-
tutional provision which requires two witnesses to
the same overt act for a conviction of treason.
United States v. Haupt, 136 F. 2nd 661.
Defendant's Proposed Instruction No. 59
Circumstantial evidence, no matter how con-
clusive, cannot supplant the Constitutional require-
ment that the overt act must be established by the
testimony of two witnesses.
United States v. Robinson, 259 P. 685, 694.
Defendant's Proposed Instruction No. 60
The written statement of the defendant made to
an agent of the Federal Bureau of Investigation
cannot supply defects in the Constitutional require-
ment of two witnesses to the overt act.
Haupt V. United States, 91 L. Ed. 803, 809.
Defendant's Proposed Instruction No. 66
Motive and intent are not synonymous ; motive is
the moving cause which induces action and has to
do with desire, while intent is the purpose or design
with which an act is done and involves the will.
State V. Logan, 344 Mo. 351, 122 ALE 417.
Weir V. Commr., 109 F. 2nd 996, 999.
vs. United States of America 287
Defendant's Proposed Instruction No. 71
A citizen of the United States residing in Japan
at the outbreak of war between the two and con-
tinuing to reside in Japan thereafter does not
thereby adhere to the enemies of the United States.
The Venus, 8 Cranch 253.
Defendant's Proposed Instruction No. 72
Such a citizen of the States owes allegiance not
only to the United States but also to Japan, such
allegiance to Japan being a local allegiance.
The Venus, 8 Cranch 253.
Defendant's Proposed Instruction No. 75
If you find that the defendant did voluntarily
commit one or more of the overt acts charged in the
indictment and submitted for your consideration,
and that such overt act or acts ^^ actually gave aid
and comfort to the enemy," but entertain a reason-
able doubt as to whether the defendant had an in-
tent to adhere to or assist our enemies in their pros-
ecution of the war, or to hamper the United States
in its prosecution of the war, then the defendant
did not act with treasonable intent, and you must
acquit her.
Modeled on instruction 11-X given in U. S. v.
Kawakita Criminal No. 19,665, U.S.D.C,
Southern District of California, Central
Division.
288 Iva Ikuko Toguri B' Aquino
Defendant's Proposed Instruction No. 110
The natural born subject of a belligerent country
who leaves the land of his or her birth before the
war and resides within the realm of the other
belligerent without becoming naturalized or com-
pletely divested of his or her native rights is on the
outbreak of war an alien enemy of the government
under which he or she resides.
56 Am. Jur. 188.
Defendant's Proposed Instruction No. Ill
If you iind that the defendant was an American
citizen at the time of the outbreak of the war be-
tween the United States and Japan on Dec. 8, 1941,
and that she resided in Japan at that time, then in
Japan she had the status of an alien enemy.
Cf. Ludecke v. Watkins, 335 U. S. 160.
Defendant's Proposed Instruction No. 140
No overt act charged in the indictment can con-
stitute treason against the United States if at the
time of the alleged overt act the defendant had lost
her American citizenship.
Defendant's Proposed Instruction No. 144
If you find from the evidence that the defendant
voluntarily renounced or abandoned or otherwise
lost her American citizenship or nationality prior to
or during the period specified in the indictment,
commencing November 1, 1943, and ending August
vs. United States of America 289
14, 1945, you must acquit the defendant, because the
overt acts charged in the indictment, even if com-
mitted by her, could not constitute the crime of
treason against the United States, since her duty
of allegiance ceased with termination of her Amer-
ican citizenship.
So if you should find from the evidence beyond a
reasonable doubt that during the period specified
in the indictment the defendant remained an Amer-
ican citizen owing allegiance to the United States,
it would be your duty then to consider the second
essential element of the charge as set forth in the
indictment.
Modeled in instruction 11-L in U. S. v. Kawa-
kita, Crim. No. 19,665, U.S.D.C, S.D. CaL,
Cen. Div.
Defendant's Proposed Instruction No. 158
If two conclusions can reasonably be drawn from
the evidence, one of innocence and one of guilt, the
former should be adopted.
United States v. Haupt, 47 F. Supp. 836, 840.
(These instructions have been covered by the
Court in other instructions. Defendant Excepts
on the ground they have not been so covered.)
[Endorsed] : Filed October 6, 1949.
290 Iva Ikuko Toguri D' Aquino
DEFENDANT'S PROPOSED INSTRUCTIONS
(These instructions have been refused by the
Court as not correct statements of the law, not
applicable to the evidence in this case, or al-
ready covered by other instructions. Defend-
ant Excepts to their refusal.)
Defendant's Proposed Instruction No. 1
The evidence will not support a conviction upon
the ground that the defendant committed the act
alleged as overt act numbered one in the indictment.
State V. Logan, 344 Mo. 351, 122 ALR 417.
Weir V. Commr., 109 F. 2nd 996, 999.
Defendant's Proposed Instruction No. 2
The evidence will not support a conviction upon
the ground that the defendant committed the act
alleged as overt act numbered tw^o in the indictment.
State V. Logan, 344 Mo. 351, 122 ALR 417.
Weir V. Commr., 109 F. 2nd 996, 999.
Defendant's Proposed Instruction No. 3
The evidence will not support a conviction upon
the ground that the defendant committed the act
alleged as overt act numbered three in the indict-
ment.
State V. Logan, 344 Mo. 351, 122 ALR 417.
Weir V. Commr., 109 F. 2nd 996, 999.
i
vs. United States of America 291
Defendant's Proposed Instruction No. 4
The evidence will not support a conviction upon
the gi'ound that the defendant committed the act
alleged as overt act numbered four in the indict-
ment.
State V. Logan, 344 Mo. 351, 122 ALR 417.
Weir V. Commr., 109 F. 2nd 996, 999.
Defendant's Proposed Instruction No. 5
The evidence will not support a conviction upon
the ground that the defendant committed the act
alleged as overt act numbered five in the indict-
ment.
State V. Logan, 344 Mo. 351, 122 ALR 417.
Weir V. Commr.,. 109 P. 2nd 996, 999.
Defendant's Proposed Instruction No. 6
The evidence will not support a conviction upon
the ground that the defendant committed the act
alleged as overt act numbered six in the indict-
ment.
State V. Logan, 344 Mo. 351, 122 ALR 417.
Weir V. Commr., 109 P. 2nd 996, 999.
Defendant's Proposed Instruction No. 7
The evidence will not support a conviction upon
the ground that the defendant committed the act
alleged as overt act numbered seven in the indict-
ment.
State V. Logan, 344 Mo. 351, 122 ALR 417.
Weir V. Commr., 109 P. 2nd 996, 999.
i
292 Iva Ikuko Togiiri D' Aquino
Defendant's Proposed Instruction No. 8 ■
The evidence will not support a conviction upon
the ground that the defendant committed the act
alleged as overt act numbered eight in the indict-
ment.
State V. Logan, 344 Mo. 351, ALR 417.
Weir V. Commr., 109 P. 2nd 996, 999.
Defendant's Proposed Instruction No. 30A
You cannot consider the defendant's admissions
upon any of the issues of (1) citizenship (2) aid
and comfort or (3) intention unless you first find
that the Government has introduced other credible
corroborative evidence on the same issue.
Pearlman v. U. S., 10 P (2d), 460, 461, 462
(CCA 9).
Goff V. U. S., 257 P. 294 (CCA 8).
Defendant's Proposed Instruction No. 38
The words ''first brought," as used in Judicial
Code, Section 41, upon which the venue in this Court
is based, mean brought under lawful custody.
Defendant's Proposed Instruction No. 42
You are instructed that the so-called overt acts
charged in the indictment are of the type which are
allowed to be charged in conspiracy cases but that
they do not constitute the type of overt acts con-
templated by the constitutional definition of treason
and, in consequence, you are instructed to return a
verdict of acquittal in favor of the defendant.
vs. United States of America 293
Defendant's Proposed Instruction No. 44
Every act, movement, deed and word of the de-
fendant charged to constitute treason must be sup-
ported by the testimony of two witnesses.
Cramer v. United States, 325 U. S. 1, 34, 35.
Defendant's Proposed Instruction No. 45
Where the overt acts are single, continuous, and
composite, made up of or proved by several circum-
stances and passing through several stages, it is
necessary that there be two witnesses to each cir-
cumstance.
United States v. Haupt, 136 F. 2nd 661, 675.
United States v. Robinson, 259 F. 685.
Defendant's Proposed Instruction No. 46
If such an act is alleged as an overt act the entire
chain of events of which it is one step must be
established by the direct testimony of two witnesses.
State V. Logan, 344 Mo. 351, 122 ALR. 417.
Weir V. Commr,, 109 F. 2nd 996, 999.
Defendant's Proposed Instruction No. 48
The defendant must be shown beyond a reason-
able doubt to have given both aid and comfort by
the overt acts alleged ; it is not enough to show that
the act gave comfort to the enemy if it did not also
actually aid the enemy.
State V. Logan, 344 Mo. 351, 122 ALR. 417.
Weir V. Commr., 109 F. 2nd 996, 999.
294 Iva Ikuko Toguri D' Aquino
Defendant's Proposed Instruction No. 49 ±
The fact that the enemy may have believed that
the defendant's commentaries would aid Japan or
weaken the United States in the prosecution of the
war is not conclusive evidence that they would have
that effect.
State V. Logan, 344 Mo. 351, 122 ALR. 417
Weir V. Commr., 109 F. 2nd 996, 999.
Defendant's Proposed Instruction No. 50
It is a necessary element in every overt act
charged against the defendant that such alleged act
should have actually given aid and comfort to the
enemy. The elements of aid and comfort must be
proven by two witnesses and beyond a reasonable
doubt just as much as every other element of each
overt act which is alleged.
Cramer v. U. S., 325, U. S. 1, 34-5, 89 L. Ed.
1441, 1461.
Haupt V. U. S., 330 U. S. 631, 635, 91 L. Ed.
1145, 1150.
Defendant's Proposed Instruction No. 52
An act which in itself gives the enemy no aid or
comfort but is merely a step in a program which
if and when completed may give the enemy aid and
comfort is not such an overt act as must be alleged
and proved to warrant a conviction of treason.
State V. Logan, 344 Mo. 351, 122 ALR. 417.
Weir V. Commr., 109 F. 2nd 996, 999.
vs. United States of America 295
Defendant's Proposed Instruction No. 60
There is no direct evidence that any of the alleged
overt acts aided Japan or weakened the United
States in the prosecution of the war.
State V. Logan, 344 Mo. 351, 122 ALR. 417.
Weir V. Commr., 109 F. 2nd 996, 999.
Defendant's Proposed Instruction No. 70
No one of the overt acts alleged in the indictment
is in itself evidence of treasonable purpose and
intent.
State V. Logan, 344 Mo. 351, 122 ALR. 417.
Weir V. Commr., 109 F. 2nd 996, 999.
Defendant's Proposed Instruction No. 74
There mere fact that a citizen of the United
States resident in Japan rendered services to a
Japan corporation and received compensation there-
for does not establish that she is guilty of treason
to the United States.
The Venus, 8 Cranch 253.
Defendant's Proposed Instruction No. 76
The fact that the defendant made records for
broadcast by the Japan Radio Corporation to the
United States while the two countries w^re at war,
does not alone establish that she was guilty of
treason.
The Venus, 8 Cranch 253.
296 Iva Ikuko Toguri D^ Aquino
Defendant's Proposed Instruction No. 83
If the jury find that the defendant's employment
by the Japan Radio Corporation and by other agen-
cies of the Japan government was emplojnuent for
which only a Japan national was eligible, the de-
fendant was expatriated and could not be guilty of
treason.
United States v. Haupt, 136 P. 2nd 661, 675.
United States v. Robinson, 259 P. 685.
Defendant's Proposed Instruction No. 84
If the jury find that the defendant did not intend
to expatriate herself although urged to do so by
others, that fact may be considered by the jury as
some evidence that she did not intend to betray the
United States.
United States v. Haupt, 136 P. 2nd 661, 675.
United States v. Robinson, 259 P. 685.
Defendant's Proposed Instruction No. 88
Various alleged statements by the defendant as
well as records of voice tests have been admitted
into evidence for your consideration. Before you
deal with these from any other standpoint you must
first determine whether the defendant made each
of these voluntarily and of her own free will not
acting either under inducement or threats. If as to
any you do not find that the Government has shown
the statement to have been made voluntarily, then
vs. United States of America 297
you must discard any such alleged statement from
your consideration of the case.
Bram v. U. S., 163 U. S. 532.
Defendant's Proposed Instruction No. 89
A phonographic recording of a short wave radio
broadcast is the best evidence of the nature and
contents of that recording. A witness's oral testi-
mony of his recollection of what he heard as to the
nature and contents of such a broadcast is but sec-
ondary evidence which, at best, is but a poor sub-
stitute for the phonographic recording itself. In
consequence, you are instructed to view with cau-
tion or distrust any such testimony as to the nature
and contents of a broadcast to which such a witness
listened between 4 and 6 years ago.
Defendant's Proposed Instruction No. 105
You are instructed that the original radio script
written by a person is the best evidence of its con-
tents and that the present oral testimony of a wit-
ness as to its nature and contents four to six years
since he read it is at best but a poor substitute for
the original script itself and that the testimony of
such a witness as to its contents is to be viewed with
caution or distrust.
Defendant's Proposed Instruction No. 156
You are instructed that Title 10 U. S. Code, Sec.
15, provides as follows:
^'It shall not be lawful to employ any part of the
298 Iva Ikuko Toguri D' Aquino
Army of the United States, as a posse comitatus, or
otherwise, for the purpose of executing the laws, ex-
cept in such cases and under such circumstances as
su-ch employment of said force may be expressly
authorized by the Constitution or by act of Con-
gress; and any person wilfully violating the pro-
visions of this section shall be deemed guilty of a
misdemeanor and on conviction thereof shall be pun-
ished by a fine not exceeding $10,000 or imprison-
ment not exceeding two years or by both such fine
and imprisonment/'
You are also instructed that neither the Constitu-
tion of the United States nor any act of Congress
authorizes any part of the Army of the United
States to arrest, detain or imprison the defendant in
Japan or to transport her to the United States.
See 17 Opin. Attorney Gen. 71.
19 Opin. Attorney Gen. 293.
Defendant's Proposed Instruction No. 39
It is the duty of all prisoners of war to obey the
laws, rules and regulations in force in the country
where they are detained.
While held by the enemy, prisoners of war are
not of course amenable to the discipline of their own
officers, but they are subject to discipline and pun-
ishment by the detaining power for violations of
any law, rule or regulation of the detaining power.
Given in instruction 11-0 (2) in U.S. v. Kawa-
kita, Crim. No. 19,665, U.S.D.C, S.D.Cal., Cen.Div.
vs. United States of America 299
Defendant's Proposed Instruction No. 106
Article VI, Clause 2 of the U. S. Constitution
provides in part : ' ' This Constitution and the laws
of the United States which shall be made in pur-
suance thereof and all treaties made unjler the au-
thority of the United States shall be the supreme
law of the land."
Defendant's Proposed Instruction No. 107
The Geneva Convention of 1929, to which the
United States, Japan and other countries were par-
ties, was and is a treaty made under the authority
of the United States.
In re Yamashita, 327 U.S. 1, 23.
Defendant's Proposed Instruction No. 108
The provisions of the Geneva Convention between
the United States and Japan remained in force at
the outbreak of the war between the United States
and Japan and throughout the duration of the war.
Cf. Clark v. Allen, 331 U.S. 503, 508.
Defendant's Proposed Instruction No. 109
Article 82 of the Geneva Convention provides as
follows :
**The provisions of the present Convention must
be respected by the High Contracting Parties under
all circumstances.
^*In case, in time of war, one of the belligerents
is not a party to the Convention, its provisions shall
300 Iva Ikuko Toguri D' Aquino
nevertheless remain in force as between the bel-
ligerents who are parties thereto."
47 U. S. Stats, at L., pgs. 2021-2059.
Defendant's Proposed Instruction No. 112
If you find that the defendant was an American
citizen at the outbreak of the war between the
United States and Japan on December 8, 1941, and
that she was in Japan at that time, then she was
in contemplation of law a prisoner of war of Japan.
Rex V. Vine Street Police Station [1916] 1
KB 268.
Ludecke v. Watkins, 335 U.S. 160.
Defendant's Proposed Instru<?tion No. 113
If you find that the defendant was an American
citizen at the outbreak of the war between America
and Japan on December 8, 1941, and that she was at
that time in Japan, you are instructed that she
had and continued to have the same rights as a
prisoner of war.
Cf. Rex V. Vine St. Police Station [1916] 1
KB 268.
Defendant's Proposed Instruction No. 114
'^Except as otherwise hereinafter indicated, every
person captured or interned by a belligerent power
because of the war is, during the period of such
captivity or internment, a prisoner of war, and is
vs. United States of America 301
entitled to be recognized and treated as such under
the laws of war."
Art. 70 of War Department Publication
Basic Field Manual, Rules of Land War-
fare FM 27-10 (1940).
Defendant's Proposed Instruction No. 115
Where the United States by treaty has consented
that its military prisoners of war may do certain
kinds of work while under the power of an enemy
nation and American civilians are in the enemy
country at the outbreak of war with the United
States, the United States does not punish its civilian
citizens for treason for doing exactly the same thing
which it has permitted to its military prisoners.
Defendant's Proposed Instruction No. 116
Article 2 of the Geneva Convention provides in
part :
''Prisoners of war are in the power of the hostile
Power, but not of the individuals or corps who have
captured them."
47 U. S. Stats, at L., pgs. 2021-2031.
Defendant's Proposed Instruction No. 117
Article 45 of the Geneva Convention provides:
''Prisoners of war shall be subject to the laws,
regulations, and orders in force in the armies of the
detaining Power.
"An act of insubordination shall justify the ado])-
302 Iva Ikuko Toguri D ^Aquino
tion towards them of the measures provided by such
laws, regulations and orders.
^'The provisions of the present chapter, however,
are reserved.''
This reservation covers exceptions which I shall
state to you in other instructions.
47 U.S. Stats, at L., 2021-2046.
Defendant's Proposed Instruction No. 118
Article 27 of the Geneva Convention provides in
part:
^* Belligerents may utilize the labor of able pris-
oners of war, according to their rank and aptitude,
ofl&cers and persons of equivalent status excepted."
47 U.S. Stats, at L., pgs. 2021-2040.
Defendant's Proposed Instruction No. 119
Except where otherwise provided by the terms of
the Geneva Convention, the defendant while in
Japan, was bound to obey the laws of Japan and
the orders of Japanese officials both civil and
military.
47 U.S. Stats, at L., 2021-2046 (Art. 45).
Defendant's Proposed Instruction No. 120
Article 31 of the Geneva Convention provides in
part :
^' Labor furnished by prisoners of war shall have
no direct relation with war operations. It is espe-
cially prohibited to use prisoners for manufacturing
vs. United States of America 303
and transporting arms or munitions of any kind,
or for transporting material intended for combatant
units.''
47 U.S. Stats, at L., pgs. 2021-2041.
Defendant's Proposed Instruction No. 121
Article 29 of the Geneva Convention provides :
**No prisoner of war may be employed at labors
for which he is physically imfit."
47 U.S. Stats, at L., pgs. 2021-2040.
Defendant's Proposed Instruction No. 122
Article 28 of the Geneva Convention provides:
*^The detaining Power shall assume entire respon-
sibility for the maintenance, care, treatment and
payment of wages of prisoners of war working for
the account of private persons."
47 U.S. Stats, at L., pgs. 2021-2040.
Defendant's Proposed Instruction No. 123
Article 34 of the Geneva Convention provides in
part:
'^Prisoners of war shall not receive wages for
work connected with the administration, manage-
ment and maintenance of the camps.
^* Prisoners utilized for other work shall be en-
titl-ed to wages to be fixed by agreements between
the belligerents.
''These agreements shall also specify the part
which the camp administration may retain, tlie
304 Iva Ikuko Toguri B' Aquino
amount which shall belong to the prisoner of war
and the manner in which that amount shall be put
at his disposal during the period of his captivity.
^^A¥hile awaiting the conclusion of the said agree-
ments, payment for labor of prisoners shall be set-
tled according to the rules given below:
^^a) Work done for the State shall be paid for
in accordance with the rates in force for soldiers
of the national army doing the same work, or, if
none exists, according to a rate in harmony with
the work performed.
^'b) When the work is done for the account of
other public administrations or for private persons,
conditions shall be regulated by agreement with the
military authority."
47 U.S. Stats, at L., pgs. 2021-2042.
Defendant's Proposed Instruction No. 124
It was legal for defendant to receive pay from the
Government of Japan or any of its agencies if you
find that such was the fact. By the terms of the
Geneva Convention with exceptions not material
here, the Government of Japan was obliged to pay
all American prisoners of war for work which they
did while they were such prisoners.
Defendant's Proposed Instruction No. 125
The provisions of the Geneva Convention consti-
tute a consent by the United States that its prison-
ers of war shall obey the orders of the opposite
vs. United States of America 305
belligerent power to the extent that they are not
expressly forbidden by the terms of that convention.
Defendant's Proposed Instruction No. 126
As between the United States and its citizens, the
provisions of the Geneva Convention legalize all
acts done by American citizens in an enemy country
which the terms of the Convention do not forbid.
Defendant's Proposed Instruction No. 127
The only work which the Government of Japan
could not order American prisoners to do was work
which has a direct relation with war operations,
such as manufacturing or transporting arms or
munitions. If you do not find beyond a reasonable
doubt that the defendant performed work which
had a direct relation with war operations, then you
must find the defendant not guilty.
Defendant's Proposed Instruction No. 128
A person may do voluntarily anything which he
or she may be legally ordered to do.
Defendant's Proposed Instruction No. 129
Prisoners of war do not have to decide at their
peril w^hether work which they are ordered to do
by the enemy belligerent has a direct or an indirect
relation with war operations. If you do not find
beyond a reasonable doubt that the defendant her-
self believed that the work she w^as doing had a
306 ' Iva Ikuko Toguri D' Aquino
direct relation with war operations, then you must
find her not guilty.
Defendant's Proposed Instruction No. 130
The defendant was not bound to distinguish at
her peril as to whether work which she was ordered
to do had a direct or an indirect relation with war
operations. If any Japanese official, -civil or mili-
tary, in violation of the Geneva Convention ordered
defendant to do work which had a direct relation
with war operations, defendant was justified in
obeying such order and her act in doing so would
not be treason. If you entertain a reasonable doubt
as to whether any act done by defendant, regardless
of its nature, was done in obedience to the orders
of any Japanese official then you must find her not
guilty.
Defendant's Proposed Instruction No. 131
You are instructed that the work which the de-
fendant did while she was a resident of Japan dur-
ing the war was not such as had a direct relation
with war operations. You must therefore find her
not guilty.
Defendant's Proposed Instruction No. 132
Unless you find beyond a reasonable doubt that
the defendant performed acts which are not per-
mitted to prisoners of war by the terms of the
Geneva Convention, then you must find her not
guilty.
vs. United States of America 307
Defendant's Proposed Instruction No. 133
If the defendant did no more than play music
which was intended to get listeners for other parts
of a radio program which contained direct propa-
ganda to the American troops, then the defendant
did work which had only an indirect relation with
war operations. Such work is permitted by the
terms of the Geneva Convention and the defendant
cannot be guilty of treason because of it.
Defendant's Proposed Instruction No. 134
If you entertain a reasonable doubt as to whether
the defendant did any more than broadcast and
introduce music which was to serve as a background
for propaganda broadcasts, then the prosecution has
not proven beyond a reasonable doubt that the
defendant did work which has a direct relation with
war operations. In this event you must find the
defendant not guilty.
Defendant's Proposed Instruction No. 135
If you find that the defendant discussed her par-
ticipation in a radio broadcast or the nature of a
radio broadcast which she was to make and if you
do not find beyond a reasonable doubt that said
radio broadcast amounted to more than the an-
nouncements for a musical program and a musical
program itself, intended to attract listeners' interest
for other subjects of a broadcast, then you are in-
structed that the government has not proven beyond
308 Iva Ikuko Toguri V Aquino
a reasonable doubt that the defendant did any work
which has a direct relation with war operations. If
you entertain such reasonable doubt you must find
the defendant not guilty.
Defendant's Proposed Instruction No. 136
If you find beyond a reasonable doubt that the
defendant did prepare a radio script for subsequent
broadcast but if you do not find beyond a reasonable
doubt that said radio script was anything other
than the introduction for music which was to be
played to attract listener interest for other parts
of a broadcast, then the government has not proved
beyond a reasonable doubt that the defendant en-
gaged in work which has a direct relation with war
operations. If you entertain such a reasonable doubt
you must find the defendant not guilty.
Defendant's Proposed Instruction No. 137
If any Japanese official, civil or military, in vio-
lation of the Geneva convention ordered defendant
to do work which had a direct relation with war
operations, and defendant believed that she would
be killed, physically injured, beaten or the like if
she disobeyed, then obedience to such order does
not constitute treason.
Defendant's Proposed Instruction No. 138
If you find that defendant did any work which
had a dire<3t relation with war operations, but enter-
vs. United States of America 309
tain a reasonable doubt as to whether she was or-
dered to do so and believed she would suffer death,
bodily injury, beating or the like if she disobeyed,
then you must find the defendant not guilty.
Defendant's Proposed Instruction No. 77
If you find that the broadcasts made by defend-
ant, whether innocent in character or otherwise,
were made by her to aid, encourage or assist the
U. S. and Allied prisoners of war who were forced
to broadcast on the Zero Hour and other Japanese
radio programs then she did not have any guilty
intent to betray the U. S. and you must acquit her.
Defendant's Proposed Instruction No. 78
If you find that U. S. and Allied POWs were
held under duress by the Japanese and that the
defendant consented to become a radio announcer
simply to aid, assist and encourage U. S. and Allied
POWs to defeat the purposes or objectives to which
the Japanese devoted them then her broadcasts,
whatever their character may have been, were ex-
cusable because those POWs were acting under
duress exerted upon them by the enemy, and the
defendant, in aiding, assisting and encouraging
those POWs was aiding and comforting the United
States and its Allies and was injuring our enemy
Japan.
310 Iva Ikuko Toguri D' Aquino
Defendant's Proposed Instruction No. 79
If you find that the defendant, acting in good
faith, became or was a radio broadcaster for the
purpose of encouraging, assisting and bolstering up
the spirits and morale of our U. S. and Allied
POWs and what she did w^as designed towards
that goal you must return a verdict of acquittal in
her favor because in such an event she had no
intent to <3ommit any unlawful act against the
United States.
Defendant's Proposed Instruction No. 85
Under the circumstances of this case, the defend-
ant cannot be found to have had an intent to betray
the United States if the motives for her acts was
good and to aid the United States.
United States v. Haupt, 47 F. Supp. 836, 844.
Defendant's Proposed Instruction No. 90
If you find that one or more of the U. S. and
Allied prisoners of war were responsible for the
Japanese authorities selecting or ordering the de-
fendant to become a radio announcer then you must
return a verdict of acquittal in favor of the de-
fendant because whatever she said or did in broad-
casting, regardless of its character, was caused by
those POWs who, as U. S. and Allied officers, were
in actuality her superior officers and she was bound
to aid and assist them the same as any subordinate
officer or men serving in our armed forces who
were under their immediate commands.
vs. United States of America 311
Defendant's Proposed Instruction No. 91
If you find that any U. S. or Allied POWs were
directly or indirectly responsible for having the de-
fendant selected to become a broadcaster and that
they led her to believe and she did believe that in so
doing she would be assisting them to defeat the pur-
poses of the Japanese you must return a verdict
of acquittal.
Defendant's Proposed Instruction No. 92
As to any overt act or acts charged in the indict-
ment and submitted for your consideration which
you may find to have been committed by the defend-
ant, if you entertain a reasonable doubt whether the
defendant did the act or acts willingly or volun-
tarily, or so acted only because performance of the
duties of her employment required her to do so or
because of other coercion or compulsion, you must
acquit the defendant.
Modeled on instruction 11-U given in U. S.
V. Kawakita Criminal No. 19,665, U.S.D.C.,
Southern District of California, Central
Division.
Defendant's Proposed Instruction No. 93
If you find from the evidence that the defendant
was compelled by the Japanese, that is to say, by
order of the Japanese Imperial Army Headquarters
or by order of Japanese civilian authority at Radio
Tokyo, to become a radio broadcaster and that she
had no choice but to obey such order or orders and
312 Iva Ikuko Toguri D' Aquino
that, in so doing, she acted in fear that if she
failed so to do her life would be imperiled or she
would suffer grievous physical harm by the Japa-
nese you must return a verdict acquitting her of
the charges brought against her.
Defendant's Proposed Instruction No. 94
If you find from the evidence that the defendant
believed and had good cause or reason to believe
she was compelled to become an announcer by our
enemies, the Japanese, you must acquit her.
Defendant's Proposed Instruction No. 95
If you find from the evidence that U. S. or Allied
prisoners of war selected the defendant to become
a broadcaster on the Zero Hour program at Radio
Tokyo and she was ordered to become a broadcaster
by our enemies, the Japanese, then her broadcasts,
regardless of their character, were the broadcasts of
the U. S. and Allied prisoners of war and, if those
prisoners of war themselves were acting under
duress, i.e., if they were forced by the Japanese to
broadcast, then the defendant's acts are excusable,
regardless of their character, because her broadcasts
then, too, like those of those prisoners of war, were
the products of coercion and compulsion by the
enemy.
vs. United^States of America 313
Defendant's Proposed Instruction No. 96
If you find that defendant did any of the acts
charged in the indictment, but find that she was
acting under fear of bodily injury, beating or the
like if she refused, then you must find for the
defendant on such act.
Defendant's Proposed Instruction No. 97
If you find that any act charged in the indictment
was done by defendant in fear of death if she re-
fused, then you must find for defendant as to such
act.
Defendant's Proposed Instruction No. 98
If you find that the defendant did the acts charged
in the indictment, but entertain a reasonable doubt
as to whether or not she was acting under fear of
bodily injury, beating or the like, then you must
find the defendant not guilty.
Defendant's Proposed Instruction No. 99
If you find that the defendant did the acts charged
in the indictment but entertain a reasonable doubt
as to whether she was acting under fear of death
when she did them, then you must find her not
guilty.
Defendant's Proposed Instruction No. 100
If you find that any and all acts charged by the
indictment were done by defendant under fear of
314 Iva Ikuko Toguri B' Aquino
bodily injury, beating or the like if she refused,
then you must find the defendant not guilty.
Defendant's Proposed Instruction No. 101
If you find that any and all acts charged by the
indictment were done by defendant under fea^ of
death if she refused, then you must find her not
guilty.
Defendant's Proposed Instruction No. 102
If you find that defendant did any of the acts
charged in the indictment, but entertain a reason-
able doubt as to whether she w^as actually in fear
of death if she refused, then you must find for the
defendant on such act.
Defendant's Proposed Instruction No. 103
If you find that defendant did any of the acts
charged in the indictment but entertain a reasonable
doubt as to whether she was acting in fear of bodily
injury, beating or the like if she refused, then you
must find for the defendant on such act.
Defendant's Proposed Instruction No. 104
In reaching a verdict you must take into consid-
eration that a young woman, such as this defendant
was in 1943, would not be expected to have as much
courage in the face of threats and danger from the
enemy as would male soldiers and civilians or as
much as ordinary prudent soldiers or civilians. You
must expect that she would be more prone to fear
vs. United States of Aynerica 315
in the face of danger to herself than would a U. S.
soldier or male civilian. If our POWs were held in
duress and acting under fear and were intimidated
into becoming broadcasters by the Japanese it is
reasonable to presume that lessor factors of personal
danger would induce or cause a young woman to be
in great fear and to obey orders issued to her by
the Japanese enemy.
Defendant's Proposed Instruction No. 139
If any threats w^ere made to the defendant of
death, bodily injury, beating or the like if she re-
fused to obey orders given to her, it is immaterial
whether such threats were communicated to her di-
rectly by Japanese officials or whether they were
communicated to her by prisoners of war as coming
from Japanese officials.
Defendant's Proposed Instruction No. 155
If you find that the defendant's guilt or inno-
cence of the crime charged in this indictment has
been previously passed upon by a competent tri-
bunal either in her favor or against her, then you
are instructed that she has been once in jeopardy
and you must find her not guilty.
Defendant's Proposed Instruction No. 157
If you find that the defendant was arrested in
Japan on or about October 17, 1945, and continu-
ously thereafter was imprisoned in the Yokohama
316 Iva Ikuko Toguri D' Aquino
Prison in Japan to on or about November 16, 1945,
and thereafter was imprisoned in the Sugamo
Prison in Japan to on or about October 26, 1946,
by the United States or by authority of the United
States you are instructed to return a verdict of ac-
quittal against her because that punishment in-
flicted upon her by such authority constitutes either
a prior conviction or a prior acquittal of the de-
fendant by the United States and the Fifth Amend-
ment of the Constitution forbids this indictment and
trial because it subjects the defendant twice for
the same alleged offense and puts her twice in jeop-
ardy, in violation of the Fifth Amendment.
Defendant's Proposed Instruction No. 45-A
It is alleged in the indictment that the Broad-
casting Corporation of Japan was controlled by
the Imperial Japanese Government of Japan. Proof
of this fact, if it be a fact, is an essential part of
every one of the overt acts alleged in the indict-
ment. Unless you find that the Government has
proven beyond a reasonable doubt and with two wit-
nesses that the Broadcasting Corporation of Japan
was an agency of the Imperial Japanese Govern-
ment under Japanese law at the time of the alleged
overt acts you must find the defendant not guilty.
Defendant's Proposed Instruction No. 45-B
It is alleged in the indictment that the Broadcast-
ing Corporation of Japan was controlled by the Im-
perial Japanese Government of Japan. Proof of
vs. United States of America 317
this fact, if it be a fact, is an essential part of eveiy
one of the overt acts alleged in the indictment. Un-
less you find that the Government has proven be-
yond a reasonable doubt that the Broadcasting Cor-
poration of Japan was an agency of the Imperial
Japanese Government under Japanese law at the
time of the alleged overt acts you must find the de-
fendant not guilty.
Defendant's Proposed Instruction No. 45-C
It is alleged in the indictment that the Broadcast-
ing Corporation of Japan was controlled by the
Imperial Japanese Government of Japan. Proof
of this fact, if it be a fact, is an essential part of
every one of the overt acts alleged in the indictment.
You must find for the defendant upon each overt act
as to which you are not convinced that the Govern-
ment has proven beyond a reasonable doubt and
with two witnesses that the Broadcasting Corpora-
tion of Japan was an agency of the Imperial Jap-
anese Government under Japanese law at the time
of the alleged overt act.
Defendant's Proposed Instruction No. 45-D
It is alleged in the indictment that the Broadcast-
ing Corporation of Japan was controlled by the
Imperial Japanese Government of Japan. Proof
of this fact, if it be a fact, is an essential part of
every one of the overt acts alleged in the indict-
ment. You must find for the defendant upon each
ovei-t act as to which you are not convinced that the
318 Iva Ikuko Toguri D' Aquino
Government has i)roven beyond a reasonable doubt
that the Broadcasting Corporation of Japan was
then an agency of the Imperial Japanese Govern-
ment under Japanese law at the time of the alleged
overt act.
Defendant's Proposed Instruction No. 161
Amendment VI to the United States Constitution
provides in part as follows :
^^In all criminal prosecutions, the accused shall
enjoy the right to a speedy . . . trial.
??
Defendant's Proposed Instruction No. 162
If you find that the defendant was not accorded
a speedy trial by the United States, you must ac-
quit her.
Amendment VI, U. S. Constitution.
Defendant's Proposed Instruction No. 163
If you find that the defendant was denied a
speedy trial by the actions of the United States or
its officers, you must acquit the defendant.
Amendment VI, U. S. Constitution.
Defendant's Proposed Instruction No. 164
If you have a reasonable doubt as to whether
the defendant was accorded a speedy trial by the
United States, you must acquit the defendant.
Amendment VI, U. S. Constitution.
vs. United States of America 319
Defendant's Proposed Instruction No. 165
If you find that the United States incarcerated
the defendant for thirteen months or thereabouts
without bringing charges against her, it deprived
her of the constitutional right to a speedy trial,
and you must acquit the defendant.
Defendant's Proposed Instruction No. 166
If you entertain a reasonable doubt as to whether
the actions of the United States accorded or denied
a speedy trial to defendant, and if you entertain a
reasonable doubt as to whether all material evidence
is now available which was available at the time
of the defendant's first arrest in September of
1945, then you must acquit the defendant.
U. S. V. Mc Williams, 163 Fed. (2d), 695, 696.
Defendant's Proposed Instruction No. 167
You are instructed that by incarcerating the de-
fendant for 13 months in 1945 and 1946 without
bringing charges against her, the United States de-
prived the defendant of her constitutional right to
a speedy trial and you must acquit the defendant.
Defendant's Proposed Instruction No. 168
If you find that the defendant has been denied
a speedy trial by the actions of the United States
and that evidence material to the case has become
lost or unavailable in the meantime then you must
acquit the defendant.
U. S. V. McWilliams, 163 F 2d, 695, 696.
320 Iva Ikuko Toguri D' Aquino
Defendant's Proposed Instruction No. 169
If the evidence is such that it raises a reason-
able doubt in your minds as to whether the defend-
ant was accorded a speedy trial or whether a speedy
trial was denied her' by the actions of the United
States or its officers, then you must acquit the de-
fendant.
Amendment VI, U. S. Constitution.
Receipt of a copy of the foregoing Defendant's
Proposed Supplemental Instructions to Jury is
hereby admitted this 25th day of August, 1949.
PRANK J. HENNESSY,
U. S. Attorney.
TOM DE WOLPE,
Special Assistant to the
Attorney General.
/s/ JAMES W. KNAPP,
/s/ TOM DE WOLFE,
Per J.W.K.,
Attorneys for Plaintiff.
Defendant's Proposed Instruction No. 142
If you find that the defendant at the time of her
marriage to Philip d 'Aquino, or at any other time,
made a formal declaration of allegiance to the Re-
public of Portugal, then she lost her American citi-
zenship as a result of such declaration.
vs. United States of America 321
Defendant's Proposed Instruction No. 143
Questions as to whether or not a person is an
American citizen and his or her duty of allegiance
as such are determined in accordance with the law
of the United States. But whenever our laws in-
corporate by reference or adopt the laws of another
country, the foreign law thus adopted is to be con-
sidered the same as if a part of the law of the
United States. What the foreign law is — in this
case the law of Portugal — is a question of fact to be
determined by the jury from the evidence, the same
as any other question of fact.
Defendant's Proposed Instruction No. 145
If you find that Philip d 'Aquino was a citizen of
Portugal at the time of defendant's marriage to
him, then it is your duty to determine the law of
Portugal as to the effect of such marriage on de-
fendant's citizenship from the testimony which has
been presented in court.
Defendant's Proposed Instruction No. 146
If you find that under the law of Portugal, de-
fendant's marriage to Philip d 'Aquino constituted
naturalization into Portuguese citizenship, then the
defendant lost her American citizenship as a result
of said marriage.
Defendant's Proposed Instruction No. 147
If you find that under the law of Portugal, de-
fendant's marriage to Philip d 'Aquino constituted
322 Iva Ikuko Toguri D' Aquino
a formal declaration of allegiance to the Republic
of Portugal then the defendant lost her American
citizenship as a result of said marriage.
Defendant's Proposed Instruction No. 148
If you find that defendant lost her American citi-
zenship as a result of her marriage, you are in-
structed that she cannot be guilty of treason be-
cause of any overt act occurring after the date of
said marriage, namely, April 19, 1945.
Defendant's Proposed Instruction No. 149
If defendant at any time made a formal declara-
tion of allegiance to the Republic of Portugal, then
she cannot be found guilty of treason to the United
States for any act committed after the date of such
formal declaration.
Defendant's Proposed Instruction No. 150
If you find that the defendant at any time ac-
quired Portuguese citizenship and lost her Ameri-
can citizenship it is your duty to find her not guilty
on all acts charged to have occurred at a date later
than defendant's loss of her American citizenship.
Defendant's Proposed Instruction No. 151
If you find that the defendant is a citizen of Por-
tugal you must find her not guilty.
vs. United States of America 323
Defendant's Proposed Instruction No. 152
If you find that the defendant was a Portuguese
citizen during the times specified in the indictment,
you must find her not guilty.
Defendant's Proposed Instruction No. 153
If you find that the defendant was a Portuguese
national or citizen at the time she was arrested in
Japan on or about August 26, 1948, by agents of
the U. S. and that she thereafter was transported to
the United States from Japan in September, 1949,
by agents of the U. S., you must return a verdict
of acquittal in her favor.
Defendant's Proposed Instruction No. 154
You are instructed that the uncontradicted evi-
dence demonstrates that, by the law of Portugal, as
w^ell as by the law of the United States, the defend-
ant lost her U. S. citizenship by virtue of the fact
and at the very time she married her husband on
April 19, 1945, in Tokyo, Japan, and that by that
marriage which was registered at the Portuguese
Consulate in Tokyo, Japan, in April or May, 1945,
and also by the registration thereof thereafter at
Lisbon, Portugal, she became exclusively a Portu-
guese national and citizen and since that time she
has not been subject to process of the United States
and she has not been subject to seizure in Japan by
agents of the U. S. and she has not been subject to
being brought here to be indicted in this cause.
324 Iva Ikuko Toguri D' Aquino
Further, by the law of Portugal she became a Por-
tuguese subject, an exclusive Portuguese national
and citizen owing allegiance only to Portugal and
not to the U. S. Further, by reason thereof she
lost her U. S. nationality and from that time forth
owed no allegiance to the U. S. and, since she was
not a citizen of the U. S. on August 26, 1948, she
was not properly subject to seizure and transporta-
tion to the U. S. to be indicted.
These instructions have been refused by the
Court as not correct statements of the law, not
applicable to the evidence in this case, or al-
ready covered by other instructions. Defend-
ant excepts to their refusal.
[Endorsed] : Filed October 6, 1949.
vs. United States of America 325
District Court of the United States, Northern
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Thursday, the 6th day of October, in the year
of our Lord one thousand nine hundred and forty-
nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause.]
ORDER
(Minute order denying Motion for new trial,
Motion for acquittal or new trial, and Motion
in arrest of judgment. Sentence.)
This case came on regularly this day for judg-
ment, motion for new trial, motion for acquittal or
new trial, and a motion in arrest of judgment. The
defendant was present in the custody of the United
States Marshal and with her attorneys, Wayne Col-
lins, Esq., Theodore Tamba, Esq., and George 01s-
326 Iva Ikuko Toguri D' Aquino
hausen, Esq. Tom De Wolfe, Esq., and James
Knapp, Esq., Special Assistants to the Attorney
General, and Hon. Frank J. Hennessy, U. S. Attor-
ney, were present on behalf of the United States.
After hearing the arguments of Mr. Olshausen and
Mr. De Wolfe, the above-mention motions were sub-
mitted to the Court for decision, and due considera-
tion having been had thereon, it is Ordered that the
Motion for a new trial, the Motion for acquittal or
new trial, and the Motion in arrest of judgment be,
and each of them, is hereby denied.
The defendant was called for judgment. After
hearing Mr. Collins and Mr. De Wolfe, It Is Or-
dered that the defendant Iva Ikuko Toguri d 'Aqui-
no, for the offense of Treason Against the United
States of which said defendant stands convicted
by unanimous verdict of the jury, be committed to
the custody of the Attorney General or his author-
ized representative for imprisonment for a period
of Ten (10) Years and pay a fine to the United
States in the sum of Ten Thousand Dollars ($10,-
000.00).
It Is Ordered that judgment be entered herein
accordingly.
vs. United States of America 327
District Court of the United States for the Northern
District of California, Southern Division
No. 31712 R
UNITED STATES OF AMERICA
vs.
IVA IKUKO TOGURI D 'AQUINO.
JUDGMENT AND COMMITMENT
On this 6th day of October, 1949, came the attor-
ney for the government and the defendant appeared
in person and with counsel;
It Is Adjudged that the defendant has been con-
victed upon her plea of not guilty and a verdict
of guilty of the offense of Treason (Title 18 U.S.C,
Section 1) as charged in the Indictment and the
court having asked the defendant whether she has
anything to say w^hy judgment should not be pro-
nounced, and no sufficient cause to the contrary be-
ing shown or appearing to the Court,
It Is Adjudged that the defendant is guilty as
charged and convicted.
It Is Adjudged that the defendant is hereby
committed to the custody of the Attorney General
or his authorized representative for imprisonment
for a period of Ten (10) Years and pay a fine to the
United States of America in the sum of Ten Thou-
sand Dollars ($10,000.00).
It Is Ordered that the Clerk deliver a certified
copy of this judgment and commitment to the
328 Iva Ikuko Toguri D' Aquino
United States Marshal or other qualified officer and
that the copy serve as the commitment of the de-
fendant.
/s/ MICHAEL J. ROCHE,
United States District Judge.
/s/ J. P. WELSH,
Deputy Clerk.
Examined by:
/s/ TOM DE WOLFE,
Special Asst. to the U. S.
Attorney General.
Filed and entered this 6th day of October, 1949.
C. W. CALBREATH,
Clerk.
[Title of District Court and Cause.]
NOTICE OF MOTION FOR ADMISSION OP
THE DEFENDANT TO BAIL PENDING
APPEAL
To the Plaintiff Above Named and to Frank J.
Hennessy, U. S. Attorney, and to Tom De
Wolfe, Special Assistant to the Attorney Gen-
eral, Its Attorneys:
You and each of you will please take notice that
on Monday, October 10, 1949, at the hour of 10:00
a.m. or as soon thereafter as counsel can be heard
in Room 338 of the Post Office Building at Sev-
enth and Mission Streets, San Francisco, Califor-
nia, defendant will move the court for its order
vs. United States of America 329
admitting her to bail pending appeal. Said motion
will be made upon the ground that since the imposi-
tion of a prison sentence for a term of years, this
case does not now involve a possibility of capital
punishment and that the appeal of defendant is
taken in good faith and upon substantial grounds.
This notice is based upon all of the records and
files in this case, including particularly the tran-
script of the evidence and defendant's Motion for a
New Trial Under Rule 33, Motion for Acquittal
or New Trial Under Rule 29 (b), Motion for Ar-
rest of Judgment Under Rule 34 and the Notice of
Appeal filed concurrently with this Notice of Mo-
tion.
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN,
/s/ THEODORE TAMBA,
Attorneys for Defendant.
Points and Authorities:
Rules of Criminal Procedure 38 (b), 46 (a) (2) ;
Rossi V. U. S., 11 Fed. (2d) 264; Hudson v. Parker,
156 U. S. 277, 286; Hanes v. U. S., 299 Fed. 296;
McKnight v. U. S., 113 Fed. 45; U. S. v. Nardone,
106 Fed. (2d) 41; U. S. v. Motlow, 10 Fed. (2d)
657. Some of the above cases arose under the old
rule substantially the same as the present rule. See
old rule VI, paragraph 2, 292 U. S. 61, 78 L.Ed.
1512, 1514.
Receipt of Copy attached.
[Endorsed] : Filed October 7, 1949.
330 Iva Ikuko Togiiri D' Aquino
[Title of District Court and Cause.]
ORDER STAYING EXECUTION
Good cause appearing therefor, it is hereby or-
dered that the sentence and judgment imposed in
the above-entitled case on October 6, 1949, be and
the same is hereby stayed to and including October
17, 1949.
Dated: October 7, 1949.
/s/ MICHAEL J. ROCHE,
District Judge.
[Endorsed] : Filed October 7, 1949.
vs. United States of America 331
[Title of District Court and Cause.]
AFFIDAVIT
United States of America,
Northern District of California,
City and County of San Francisco — ss.
Iva Ikuko Toguri d 'Aquino, being first duly
sworn, deposes and says: that she is the defendant
in the above-entitled action; that she is an adult
female, over the age of twenty-one years of age,
a citizen of the United States of America by birth
and so declared in the above-entitled proceeding to
be a U. S. citizen, the party defendant in the above-
entitled proceeding; that she is an indigent; that
aside from used clothing and a few personal ef-
fects, the reasonable value of which does not exceed
Twenty-Five ($25.00) Dollars, she possesses the fol-
lowing assets only, viz : sundry household furniture,
dishes, trunk, one sewing machine and utensils of
the reasonable value of $100.00 (One Hundred Dol-
lars), said property being owned jointly with her
husband, Philip d 'Aquino, and the same being sit-
uated in Tokyo, Japan; that she does not possess
any real property w^hatsoever save and except a
remote claim or right, subservient to the right of
the Attorney General as the Alien Property Cus-
todian, in and to certain real property situated in
Los Angeles County, California, described as . fol-
lows:
Lots 42 and 57 of the South Gate Tract in
the Rancho Tajauta, as per map recorded in
332 Iva Ikuko Toguri D' Aquino
Book 13, Pages 14 and 15 of Maps in the office
of the County Recorder of said County, and
portion of the 538.28-acre tract of land allot-
ted to Jose Maria Abila in the partition of
Rancho Tajauta, Case Number 1200 of the 17th
Judicial District Court in the County of Los
Angeles.
Which said property she is informed and believes
has an approximate market value of Three Thou-
sand Five Hundred Dollars ($3,500.00), the interest
of the defendant therein, however, being at most a
disputable claim and hence of substantially no value
whatever to her.
That because of her said indigency and poverty,
she is unable to pay the costs of the said action
and the appeal from the judgment of conviction
following the verdict and sentence of the court to
ten years' imprisonment and to pay the $10,000
fine or any portion thereof which was imposed upon
her herein; that she believes she is entitled to the
redress she seeks in her appeal from the said judg-
ment of conviction of this court to the United States
Court of Appeals for the Mnth Circuit; that the
nature of said appeal is that said judgment should
be reversed on all of the grounds heretofore enum-
erated in the following motions filed after the ver-
dict : Motion for New Trial Under Rule 33, Motion
for Arrest of Judgment Under Rule 34, and Mo-
tion for Acquittal or New Trial Under Rule 29
(b).
vs. United States of America 333
Wherefore affiant prays for the order of this
Court waiving the costs and expenses aforesaid and
directing that the costs of said appeal and the ex-
pense of certifying and preparing and printing
the record on appeal herein be paid by the United
States and that the same be paid when authorized
by the Attorney General as provided by 28 U. S. C.
1915. .
Dated: October 7, 1949.
/s/ IVA IKUKO TOGURI
d'AQUINO,
Affiant.
(Defendant and Appellant.)
Subscribed and sworn to before me this 7th day
of October, 1949.
[Seal] /s/ ERNEST BESIG,
Notary Public in and for the City and County of
San Francisco, State of California.
[Endorsed] : Filed October 7, 1949.
334 Iva Ikuko Toguri B' Aquino
[Title of District Court and Cause.]
ORDER DISPENSING WITH PAYMENT OP
PEES AND COSTS OP PRINTING REC-
ORD ON APPEAL
Upon reading and filing the affidavit in forma
pauperis of Iva Ikuko Toguri d 'Aquino, defendant
and appellant in the above-entitled cause,
It Is Hereby Ordered that said defendant and
appellant may, without being required to prepay
fees and costs or for the printing of the record on
appeal herein, prosecute or defend. to a conclusion
her appeal to the appellate court or courts herein,
and
It Is Hereby Ordered and Directed that the ex-
pense of printing the record on appeal herein be
paid by the United States, and that the same shall
be paid when authorized by the Director of the
Administrative Office of the United States Courts.
Dated: October 7, 1949.
/s/ MICHAEL J. ROCHE,
U. S. District Judge.
[Endorsed] : Piled October 7, 1949.
[Title of District Court and Cause.]
NOTICE OP APPEAL
The defendant above-named hereby appeals to
the United States Court of Appeals for the Ninth
vs. United States of America 335
Circuit from the judgment and sentence rendered
in the above-entilted case on October 6, 1949, which
judgment sentenced defendant to ten years in prison
and imposed a fine of $10,000. The defendant's
present address is County Jail No. 3, Washington
and Dunbar Streets, San Francisco, California. De-
fendant's attorneys are Wayne M. Collins, George
Olshausen and Theodore Tamba, all of whom have
as their address for the purposes of this case Room
1701 Mills Tower, 220 Bush Street, San Francisco,
California. In addition, the latter two attorneys
have general separate addresses as follows: George
Olshausen, 280 Union Street, San Francisco 11,
California; Theodore Tamba, 68 Post Street, San
Francisco 4, California.
Defendant is now confined in San Francisco
County Jail No. 3, the same address stated above.
The offense with which defendant is charged is
violation of 18 U.S.C. 1, treason. Specifically, it is
charged that during the war between the United
States and Japan from 1941 to 1945, defendant gave
radio broadcasts over Radio Tokyo on behalf of the
Imperial Japanese Government.
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN,
/s/ THEODORE TAMBA,
Attorneys for Defendant.
[Endorsed] : Filed October 7, 1949.
336 Iva Ikuko Toguri I)' Aquino '
District Court of the United States, Northern Dis-
trict of California, Southern Division
At A Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco, on
Monday, the 10th day of October, in the year of
our Lord one thousand nine hundred and forty-nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause.]
MINUTE ORDER DENYING MOTION FOR
BAIL PENDING APPEAL
This case came on regularly this day for hearing
on motion for bail pending appeal. Defendant was
present with her attorney, Geo. Olshausen, Esq.
Hon. Frank J. Hennessy, United States Attorney,
and Tom DeWolfe, Esq., Special Assistant to the
Attorney General, were present for the United
States. After hearing the arguments of Mr. Ols-
hausen and Mr. DeWolfe, it is Ordered that said
motion for bail pending appeal be denied.
vs. United States of America 337
RE EACH OP THE FOLLOWING
DEPOSITIONS
(Answers to questions to which objections
were sustained are shown in parenthesis.
Where part of an answer was read before
objection, or before the court's ruling, this
part is shown without parenthesis and later
the full answer in parenthesis.)
In the Southern Division of the United States
District Court for the Northern District of
California
No. 31712 R
UNITED STATES OP AMERICA,
Plaintiff,
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OP GEORGE NODA
Deposition of George Noda, taken before me,
Thomas W. Ainsworth, Vice Consul of the United
States of America, in Mitsui Main Bank Building,
Room 335, in Tokyo, Japan, under the authority
of a certain stipulation for taking oral designations
abroad, and upon order of the United States Dis-
trict Court, made and entered March 22, 1949, in
the Matter of United States of America vs. Iva
Ikuko I) 'Aquino, pending in the Southern Division
338 Iva Ikuko Toguri D 'Aquino
of the United States District Court, for the North-
ern District of California, and at issue between the
United States of America vs. Iva Ikuko Toguri
D 'Aquino.
The plaintiff appearing by Frank J. Hennessy,
United States District Attorney ; Thomas DeWolf e,
Special Assistant to the Attorney General, and Noel
Story, Special Assistant to the Attorney General,
and the defendant, appearing by Wayne N. Collins
and Theodore Tamba.
The said interrogations and answers of the wit-
ness thereto were taken stenographically by Irene
Cullington and were then transcribed by her under
my direction and the said transcription being there-
after read over correctly to said witness by me and
then signed by said witness in my presence.
It is Stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objections to the use of the
deposition, or any part of the deposition, by plain-
tiff, on the plaintiff's case in chief, shall be reserved
to the time of trial in this cause.
vs. United States of America 339
GEORGE NODA
of Tokyo, Japan, an economic adviser to GHQ,
SCAP, of lawful age, being by me first duly sworn,
deposes and says :
Direct Examination
By Mr. Tamba:
Q. Mr. Noda, what is your full name?
A. My name is George Noda.
Q. Where do you reside, Mr. Noda ?
A. My present address is c/o Mrs. Sekine, 88-3
Ikegami Tokumochi Ota-Ku, Tokyo-To.
Q. Are you married or single, Mr. Noda?
A. I am single.
Q. What is your business or occupation?
A. Presently I am employed by Price and Dis-
tribution Division, ESS, GHQ, SCAP, in the ca-
pacity of economic advisor.
1^ Q. And you are a citizen and national of what
country?
A. I am a citizen and national of Japan.
Q. Were you ever employed by Radio Tokyo?
A. I was.
Q. When were you employed there?
A. From December, 1942, through September,
1943. My job was officially terminated because of
my entry into Kyushu Imperial University. How-
ever, I returned from my trip to Kyushu, I believe
340 Iva Ikuko Toguri D' Aquino
(Deposition of George Noda.)
in October, and I spent the month of [2""] Novem-
ber in and around Tokyo and I spent most of the
time at Radio Tokyo.
Q. You were in and about the studio in the
month of October, 1943?
A. I believe more in November.
Q. Were you there during the month of Decem-
ber, 1943? A. No, I wasn't.
Q. Do you know the defendant, Iva D 'Aquino.
A. I do.
Q. When did you first meet her?
A. I met her some time before she started work-
ing for Radio Tokyo.
Q. Did you see her in and about the premises
known as Radio Tokyo ? A. Yes.
Q. When did you see her?
A. Before she started working she used to come
up every so often to visit friends and then I saw
her in November, 1943.
Q. Did you ever see her occupied as a typist ?
A. No, but I heard she had been during my trip
down to Kyushu.
Q. Were you familiar with the program known
as the ''Zero Hour."
A. When I was working there it was a very
short program, about 15 minutes.
Q. Who were the personnel on the program at
that time?
* Page numbering appearing at bottom of page of original
Reporter's Transcript.
vs. United States of America 341
(Deposition of George Noda.)
A. Mr. Nornian Reyes and/or Mr. Ted Wallace
Ince.
Q. Anyone else? A. At that time, no.
Q. Now do you recall about the time she started
on the program, you say it was November, 1943, is
that correct?
A. It must have been, because she wasn't work-
ing on that program when I left in September.
Q. Now, what part did she take on the program,
if you know?
A. She was introducing records. [3]
Q. How^ was she introducing these records, was
it from prepared script?
A. I saw her reading from script.
Q. Do you know^ who prepared that script for
her?
A. I didn't ask her; I don't remember asking,
but from my knowledge of the operations of Radio
Tokyo at that time, I think I would be quite correct
in saying that it was either Mr. Norman Reyes, Mr.
Wallace Ince or Mr. Cousens.
Q. Do you know of your own knowledge that
either Cousens, Ince or Reyes prepared script for
that program? A. Yes, I do.
Q. You say you saw Mrs. D 'Aquino broadcast,
is that correct? A. Yes.
Q. Will you tell us what kind of broadcasting
she did ; describe her to us.
A. My opinion as to her ability as an announcer
is that she was very poor. I was very surprised
342 Iva Ikuko Toguri D' Aquino
(Deposition of George Noda.)
that anybody had qualified her for that position;
her voice was deep and cracked; her speech jerky.
Q. Was she fluent? A. No.
Q. That is the kind of broadcasting you heard
while you were there? A. That is right.
Q. Were there any other woman broadcasters
while you were there?
A. Yes, Miss June Suyama; Miss Ruth Ha-
yakawa, and every so often Katherine Morooka.
Q. Any others that you can recall at this time?
A. No.
Q. Of the three girls that you mention, which of
the three took part in the ''Zero Hour'' program?
A. I think, Miss Morooka. [4]
Q. What part did Ruth Hayakawa take in the
Zero Hour program?
A. I don't remember her having any part in
the ''Zero Hour" program.
Q. How about June Suyama?
A. I don't think she had any part.
Q. What did she do?
A. Miss Suyama was, at that time, one of the
best announcers in Radio Tokyo. She handled news
broadcasts; sometimes read commentaries. She
worked mostly from 8 to 5.
Q. Where is she, if you know, at the present
time?
A. Miss Suyama, I heard, was killed by a truck.
Q. Now do you know of any PWs being slapped
vs. United States of America 343
(Deposition of George Noda.)
by any army officer around Radio Tokyo while you
were there?
Mr. De Wolfe: Object to that as incompetent,
irrelevant and immaterial, too remote.
The Court: Read it again please.
(Question reread by Mr. Collins.)
The Court: I will allow it. The objection is
overruled.
A. It was common knowledge in Radio Tokyo
that w^hen Major Cousens was first brought in to
Radio Tokyo, by, I believe, Japanese officer named
Major Muto, and he refused to follow instructions
given by Major Muto, that he was slapped and
humiliated.
The Court: Let that question and answer go
out and let the jury disregard it for any purposes
of this case.
Q. What time of the day did the Zero Hour come
on, Mr. Noda "? A. It was from 6 to 7.
Q. You left the radio station and went into the
army, is that correct?
A. In September when I resigned, I resigned
because I had been permitted entry into Kyushu
Imperial University. I had to go down to Kyushu
to continue my studies. About a month after I got
down there, I was informed that I was being drafted
into the Japanese Army and I had to return in
October to take my physical examination.
Q. You told us that before. While you were in
344 Iva Ikuko Toguri D' Aquino
(Deposition of George Noda.)
the Japanese Army, where were you stationed?
A. I was in Japan.
Q. Let me ask you. Can you tell us when the
air raids coromenced [5] in this area, if you recall,
the month and year?
A. The air raids started around February, 1945,
and grew worse and worse through March and
April. Some of the specific dates I remember are
March 9, April 14 and 15.
Q. You have appeared voluntarily as a witness
for this defendant? A. I have.
Q. Have you been interviewed by anyone else
other than me about this case ?
A. No. I was interviewed by CIC.
Q. When was that?
A. IThat was in late 1945.
Q. I think that is all.
Cross-Examination
By Mr. Story :
Q. Where were you born?
A. I was born in Victoria, B, C, Canada.
Q. Did you ever live in the United States?
A. No.
Q. Were you ever in the United States?
A. Yes.
Q. For how long?
A. About four hours. I took one of those short
trips to Seattle and returned the same day.
Q. How many times did you see Miss Toguri at
the microphone broadcasting at Radio Tokyo ?
vs. United States of America 345
(Deposition of George Noda.)
A. About three times.
Q. You mentioned a moment ago that you had
been interviewed by the CIC ? A. Yes.
Q. When was that? A. Late in 1945.
Q. Did you sign a statement?
A. I don't remember. [6]
Q. Do you recall at the time you were inter-
viewed by the CIC that you told them you saw Miss
Toguri at the microphone only one time and that
you did not know whether it was a voice test or
broadcast.
A. I am sorry; I don't have any recollection of
the statements I made ; whether I signed any state-
ment or not. All I remember is that I spoke to a
CIC agent about Miss Toguri.
Q. Then you don't really know how many times
you did see Miss Toguri at the radio station?
A. I do know it was more than once.
Q. Was she broadcasting or making a voice
test ?
A. I know definitely on one occasion she was
broadcasting. .
Q. Then the statement you made . to the CIC
is not a true statement?
A. I don't know what statement I made
Mr. Collins: Just a moment, Mr. Tamba. I
object to that as examining something not in evi-
dence, and on the further ground that no founda-
tion has been laid and the further ground that it
is argumentative and the further ground
346 Iva Ikuko Toguri D' Aquino
(Deposition of George Noda.)
The Court: The objection is sustained; proceed.
(A. I don't know what statement I made to the
CIC.)
Q. What were you doing when you came back
from the University to Tokyo ?
A. I was visiting. Well, actually, I was spend-
ing my last month as a civilian and trying to enjoy
myself.
Q. Had you resigned from the University at
that time?
A. No, there wasn't a definite resignation, or
whatever you wish to call it, but they had a system
whereby everybody who was drafted, and most
college students were at that time, was put on tem-
porary leave, let us say, for the duration.
Q. In other words, you are telling us that you
left here in September to enroll in the University?
A. That is right.
Q. That you enrolled in the University in Sep-
tember and came back to Tokyo and stayed here
during the months of October and November?
A. I believe I said I came back in October and
that it was November that I actually spent in Tokyo.
Q. When were you drafted?
A. I was drafted on December 1.
Q. Of your own knowledge, do you know who
prepared the scripts that you saw Miss Toguri
read at the radio station?
A. I did not see who did it.
vs. United States of America 347
(Deposition of George Noda.)
Q. So you don't know of your own knowledge
who wrote the scripts ?
A. I don't know, yes. I have seen, with my own
eyes, Norman Reyes, Ted Wallace, and Cousens pre-
pare scripts. I don't know definitely whether they
prepared the scripts used by Miss Toguri.
(Q. Were you present when prisoners of war
working at the radio station w^ere mistreated?
A. No, I wasn't.)
Q. Then of your own knowledge you do not
know
Mr. Collins: I ask that that might be stricken
out as calling for the opinion and conclusion of the
witness and the further ground that no foundation
has been laid, and on the further ground that it
was improper cross-examination, and Your Honor
has made a ruling on the prior question covering
that.
The Court : Read the question Mr. Reporter.
Mr. DeWolfe: Excuse me, Your Honor, maybe
we can obviate it. I think his objection is proper.
The direct examination was excluded on that same
point.
The Court: The objection will be sustained.
Mr. DeWolfe: I will confess the propriety of
the objection. And the next question and answer,
with the consent of counsel, may likewise be de-
leted, because it deals with the same point.
The Court: So stipulated?
Mr. Collins: No, you may ?
348 Iva Ikuko Toguri D' Aquino
(Deposition of George Noda.)
Mr. DeWolfe: Starting at line 12, ^^Then, of
your own knowledge ?"
Mr. Collins: No, I can't, because I don't think
that was stricken out. This is as to the voice test.
(Conversation between Messrs. DeWolfe and
Collins out of hearing of reporter.)
Mr. DeWolfe: Right here (Indicating).
Mr. Collins: Oh yes, that goes out, that is from
line 9 to and including line 14; it may go out.
The Court: Very well, it may go out. Let the
record so show.
Mr. Collins: Page 8.
(Q. Then, of your own knowledge, you don't
know if anybody was mistreated? A. No.)
Mr. Tamba: Mr. Noda, do you recall that I
asked you yesterday whether Mrs. D 'Aquino was
taking a voice test with Major Cousens, Lt. Nor-
man Reyes and you being present in the room at
that time.
A. I can't remember anything distinctly as to a
voice test for Miss Toguri.
Q. But you remember her speaking over the
Microphone 1 A. Yes.
Q. How old are you, Mr. Noda?
A. I am 26 years old.
Q. When did you come to Japan from Canada?
A. In the summer of 1936.
Q. What was your age at that time?
A. Thirteen.
vs. United States of America 349
(Deposition of George Noda.)
Q. And you have remained here ever since?
A. Yes. [8]
/s/ GEORGE NODA.
Japan,
City of Tokyo,
American Consular Service — ss:
I do solemnly swear that I will truly and im-
partially take down in notes and faithfully tran-
scribe the testimony of George Noda, a witness now
to be examined. So help me God.
/s/ IRENE CULLINGTON.
Subscribed and sworn to before me this fifteenth
day of April A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the United
States of America.
[American Consular Service Seal.]
Service No. 566a; Tariff No. 38; No fee pre-
scribed.
Japan,
City of Tokyo,
American Consular Service — ss :
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
350 Iva Ikuko Toguri D' Aquino
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D 'Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
Tamba, counsel for the defendant Iva Ikuko Toguri
D 'Aquino I examined George Noda, at my office in
Room 335, Mitsui Main Bank Building, Tokyo,
Japan, on the fifteenth day of April, A.D. 1949, and
that the said witness being to me personally known
and known to me to be the same person named and
described in the interrogatories, being by me first
sworn to testify the truth, the whole truth, and
nothing but the truth in answer to the several in-
terrogatories and cross-interrogatories in the cause
in which the aforesaid stipulation, court order, and
request for deposition issued, his evidence was taken
down and transcribed under my direction by Irene
Cullington, a stenographer who was by me first
duly sworn truly and impartially to take down in
notes and faithfully transcribe the testimony of the
said witness George Noda, and after having been
read over and corrected by him, was subscribed by
him in my presence; and I further certify that
I am not counsel or kin to any of the parties
to this cause or in any manner interested in the
result thereof.
vs. United States of America 351
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this 30th day of
April, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the United
States of America.
[American Consular Service Seal]
Service No. 707 ; Tariff No. 38 ; No fee prescribed.
[Endorsed] : Filed May 5, 1949.
In the Southern Division of the United States
District Court for the Northern District of
California
No. 31712 R
UNITED STATES OF AMERICA,
Plaintiff,
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OF LILY GHEVENIAN
Deposition of Lily Ghevenian, taken before me,
Thomas W. Ainsworth, Vice Consul of the United
States of America, in Mitsui Main Bank Building,
Room 335, in Tokyo, Japan, under the authority of
a certain stipulation for taking oral designations
abroad, and upon order of the United States Dis-
352 Iva Ikuko Togiiri D' Aquino
trict Court, made and entered March 22, 1949, in
the matter of United States of America vs. Iva
Ikuko Toguri D 'Aquino, pending in the Southern
Division of the United States District Court, for the
Northern District of California, and at issue be-
tween the United States of America vs. Iva Ikuko
Toguri D 'Aquino.
The plaintiff appearing by Frank J. Hennessey,
United States District Attorney; Thomas DeWolfe,
Special Assistant to the Attorney General, and
Noel Story, Special Assistant to the Attorney Gen-
eral, and the defendant, appearing by Wayne N.
Collins and Theodore Tamba.
The said interrogations and answers of the wit-
ness thereto were taken stenbgraphically by Marion
A. Peterson and were then transcribed by her under
my direction, and the said transcript being there-
after read over correctly to said witness by me was
then signed by said witness in my presence.
It is stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objections to the use of the
deposition or any part of the deposition, by plain-
tiff, on the plaintiff's case in chief, shall be reserved
to the time of trial in this cause..
vs. United States of America 353
LILY GHEVENIAN
of Tokyo, Japan, employed at GHQ, SCAP, of law-
ful age, being by me first duly sworn, deposes and
says:
Questions propounded by Mr. Tamba :
Q. Your name is Lily Ghevenian ?
A. Yes.
Q. Were you ever known by any other name?
A. Yes; Lily Sagoyan.
Q. Where do you reside? A. In Tokyo.
Q. How long have you resided in Tokyo?
A. I was bom here.
Q. What is your nationality?
A. Stateless.
Q. Will you explain?
A. My father was Armenian and my mother was
Japanese.
Q. Where and with whom are you employed?
A. GHQ, in Tokyo.
Q. Do you know Iva Toguri, also known as Iva
D 'Aquino? A. Yes.
Q. And when did you first meet her?
A. The latter part of 1943.
Q. Were you ever employed by Radio Tokyo?
A. Yes.
Q. Over what period of time did that employ-
ment continue?
A. From latter 1943 until September, 1945.
Q. What were your duties at Radio Tokyo ?
A. Typist.
354 Iva Ikuko Toguri D 'Aquino
(Deposition of Lily Ghevenian.)
Q. Did you work steadily from 1943? [2*]
A. Yes.
Q. What were your hours per day?
A. Every other day from 8 to 5; night shift
from 12 noon to 8 p.m.
Q. How many days per week?
A. Five and one-half days per week.
Q. Was Miss Toguri employed by Radio Tokyo?
A. Yes, she was.
Q. What work did she do when she first started
there?
A. She was there before I was ; when I came, she
was broadcasting.
Q. Was Miss Toguri ever employed as a typist?
A. I don't know.
Q. Did you know" what her hours of employment
were?
A. Early in the evening; she went home right
after the broadcast.
Q. Did you have occasion to type any scripts
for her? A. I did.
Q. Do you know who prepared that script for
her? A. I don't know.
Q. Who brought the script to you to be typed?
A. Ken Oki or Miss Toguri.
Q. What program did Miss Toguri broadcast?
A. The Zero Hour.
Q. Do you know how many days a week Miss
Toguri worked at the radio station?
* Page numbering appearing at bottom of page of original
Reporter's Transcript.
vs. United States of America 355
(Deposition of Lily Ghevenian.)
A. She was sick quite a while ; she was supposed
to have worked six days a week.
Q. Do you recall when Miss Toguri was sick,
approximately'? If you don't know, say so.
A. I don't know the exact date, but she was
away a long time when Cousens was away.
Q. Do you remember when Cousens was away?
A. No, I don't.
Q. How long would these absences be, a week,
or two, or three? A. It was weeks. [3]
Q. Now, when this script was delivered to you
for Miss Toguri 's program, how was it prepared?
A. It was typewritten.
Q. What kind of paper was it on?
A. Tissue paper — onion skin sheets.
Q. Then what would you do with this?
A. I made six or seven copies to be distributed.
Q. Do you know what became of the original?
A. Either Miss Toguri or Ken Oki took it back.
Q. Did you ever see the original of that script
again? A. No, I never did.
Q. And you have testified that you did not know
who prepared the script? A. Yes.
Q. When was that script brought to you?
A. About anywhere between 5 and 6 p.m. ; some-
times Miss Toguri brought them in at the last
minute.
Q. Do you know when the Zero Hour was broad-
cast? A. It was 6 p.m.
356 Iva Ikuko Toguri B' Aquino
(Deposition of Lily Ghevenian.)
Q. Was the script brought to you before the
broadcast ?
A. A few times it was brought in afterwards.
Q. How long was that Zero Hour program?
A. I think it was from 6 to 6 :30.
Q. Did you ever listen to the Zero Hour pro-
gram? A. Yes, I did.
Q. Did you ever listen to Mrs. D 'Aquino broad-
cast? A. Yes, I did.
Q. What did she broadcast, if you remember?
A. She broadcasted music introductions.
Q. Did you ever hear Mrs. D 'Aquino discuss
the nature or the quality of that program with
anyone? A. I do not know.
Q. Did you ever hear Mrs. D 'Aquino broadcast
a motion picture involving war? [4]
A. I do not remember.
Q. Did you ever hear Mrs. D 'Aquino speak or
broadcast into a microphone, referring to the
enemies of Japan? A. No, I haven't.
Q. Did you ever see her prepare a script re-
garding the loss of ships? A. No, I haven't.
Q. Did you ever hear her broadcast anything
regarding the high cost of living in the United
States ? A. No, I have not.
Q. Or anything regarding soldiers in the South
Pacific suffering from jungle rot and malaria?
A. Not that I remember.
Q. Did you ever hear her broadcast anything
about the unfaithfulness of wives left at home ?
vs. United States of America 357
(Deposition of Lily Ghevenian.)
A. No, I did not hear it.
Q. Or prostitution existing in the United States,
in the factory areas of the United States?
A. No, I did not hear that.
Q. Miss Ghevenian, do you remember an oc-
casion on the Zero Hour program when the pro-
gram was interrupted for a flash news item, regard-
ing the fall of Saipan?
A. Not the exact date, but I remember such an
incident.
Q. What happened ?
A. They broadcast ^' Stars and Stripes Forever."
Q. What happened around the radio station
after that?
A. Everyone made a fuss about that and nat-
urally didn't like it.
Q. Do you know what the Kempeitai was during
the war ? A. Yes, I do.
Q. What was the Kempeitai?
A. They were the gendarmes.
Q. Did you ever suspect that you were being
watched by the Kempeitai? A. Yes. [5]
Q. Were you ever apprehended by the Kempei-
tai? A. No, I have not.
Q. I mean outside of the radio station?
A. I was caught in Yokohama once.
Q. Under what circumstances were you caught ?
A. I did not have a pass to go there.
Q. Were you detained by the Kempeitai on that
occasion? A. Just for about five minutes.
358 Iva Ikuko Toguri D' Aquino
(Deposition of Lily Ghevenian.)
Q. Then you were released? A. Yes.
Q. Whom did you suspect might be Kempeitai
agents in Radio Tokyo?
Mr. DeWolfe: Objection to that as incompetent,
irrelevant and immaterial^ calling for the conclusion.
The Court: The objection will be sustained.
(A. Buddy Uno and Ruth Hayakawa, and some
other people I don't know their names.)
Q. Were you conscious of the fact that you were
being watched? A. Yes, I was.
Q. Did you ever have a discussion with Iva
D 'Aquino, regarding Kempeitai 's following you or
her or both of you?
A. I remember once telling her I was watched
by the Kempeitai.
Q. What did she say to you ?
A. I don't remember.
Q. Who was on the Zero Hour program — I
mean, what was the cast, if you know ?
A. Ken Oki, Norman Reyes and Iva Toguri, and
Charles Cousens, and I don't remember the rest.
Q. Do you remember any other girls on the
program, besides Miss Toguri?
A. In the last part — toward the end of the war,
Mrs. Oki, or Mieko Furuya — she used to take her
parts when Iva was not there.
Q. Do you know of any other girls who might
have taken Iva's parts? A. I do not.
Q. Do you know Mary Ishii?
A. I know Mary.
vs. United States of America 359
(Deposition of Lily Ghevenian.)
Q. Was she on that program?
A. I don't know. [6]
Q. What did Mr. Nakamoto do on the program?
A. I think he was in charge of the program.
Q. What did Mr. Oki do on the program?
A. He broadcasted news.
Q. Miss Ghevenian, youVe heard me mention
certain things regarding the broadcast of loss of
ships, malaria, high cost of living, prostitution,
etc. — did any of the scripts handed to you by Miss
Toguri contain any reference to such things ?
A. No.
Q. Are you sure of that? A. Yes.
Q. Why?
A. Because if there was such an item in it, I
would have discussed it with another typist.
Q. Who was that typist?
A. Mary Higuchi.
Q. Did you ever have any discussion with Mrs.
Oki during the times she substituted for Miss
Toguri? A. That's right.
Q. How did she act?
A. She acted very proud of the fact that she
was substituting for Miss Toguri.
Q. Miss Ghevenian, did Iva D 'Aquino ever dis-
cuss the war with you, or the outcome of the war?
A. Yes, she has.
Q. What did she say on those occasions?
A. She used to tell me America would never
lose. She said if you watch American boys play-
360 Iva Ikuko Togu ri B 'Aquino
(Deposition of Lily Ghevenian.)
ing footabll, you know that they'll fight to the last
man.
The Court: We will now take a recess until
two o'clock. The jurors may be excused.
(Thereupon a recess was taken until 2 p.m.
this day.)
Q. In any of her discussions with you, was she
pro- Japanese ? A. No, she was not.
Q. Did she ever express her feelings regarding
the Japanese? [7]
A. She did not like them.
Mr. DeWolfe: I move to strike that as not
responsive.
The Court: Let it go out and let the jury dis-
regard it.
Q. Did you ever know of occasions when Miss
Toguri took food to Prisoners of War?
A. I did not know it at that time, but I learned
afterwards.
Q. What did she do in order to get the food
there?
Mr. DeWolfe: I object to that as hearsay, sir,
because of the last answer. The answer before that
question was: ^^I did not know it at that time but I
learned afterwards."
The Court: Submitted?
Mr. Collins: Yes.
The Court: The objection is sustained.
Mr. Collins: The prior question, if your honor
vs. United States of America 361
(Deposition of Lily Ghevenian.)
please, related to '^Did she ever express her feel-
ings?'', and the answer that was stricken was, *^She
did not like them/' This question is, '^Did you ever
know of occassions when Miss Toguri took food to
prisoners of war"?" *^ Answer: I did not know it at
the time, but I learned afterwards."
The Court: What she learned afterwards is
hearsay.
^'Q. Where did you learn that?"
^*A. From Ruth Hayakawa."
Mr. De Wolfe: I object to that as hearsay, in the
same manner.
The Court: Let it go out and let the jury dis-
regard it.
(A. She had to escape from the Kempeitai.)
Q. Where did you learn that?
A. From Ruth Hayakawa.
Q. Do you know a man by the name of Ken
Oki? A. Yes.
Q. Did you ever have a discussion with Mr. Oki
after his return from the United States, where he
was supposed to have testified against Miss Toguri
before a United States Grand Jury?
A. Yes, I have talked to him afterwards.
Q. What was said to you by him on those oc-
casions?
A. He said he had a ''good time" and ''Why
don't you have a free ride to the United States
too?"
Q. What did you say to him ?
362 Iva Ikuko Togiiri D 'Aquino
(Deposition of Lily Ghevenian.)
A. I said I do not want to go on a free ride.
Q. Miss Ghevenian, were there other girls, who
broadcast on other programs while you were there?
A. Yes.
^Q. Do you recall the names of any of those girls?
A. June Suyama, Ruth Hayakaw^a, Kathleen
Fujiwara and Mrs. Oki.
Q. Do you remember a girl, who used to broad-
cast on the German Hour program?
A. Yes, I do.
Q. Who was she ? A. Yoneko Matsunaga.
Q. Where is that girl today?
A.' The last I heard, she was in New Jersey.
Q. What has become of June Suyama?
A. I recently heard she was killed in a car
accident. [8]
Q. Do you know when the German Hour pro-
gram was broadcast?
A. It was right after the Prisoners' Hour.
Q. Did this girl resemble Miss Toguri in stature
or features ? A. I do not know.
Cross-Examination
By Mr. Story:
Q. These scripts that you typed for Miss To-
guri—how did they come to you; were they typed
or handwritten?
A. Always typewritten.
Q. Did Miss Toguri ever tell you that she wrote
some of her scripts ? A. No, she never did.
vs, JJyiited States of America 363
(Deposition of Lily Ghevenian.)
Q. When did Mr. Cousens leave the radio sta-
tion? A. I do not know.
Q. Will you give us your best recollection — was
it in 1943, 1944 or 1945?
A. I believe it was around 1944.
Q. Now, approximately when in 1944?
A. I do not remember.
Q. Now, you mentioned that Miss Toguri was
away from the radio station for some weeks. Was
this the only time she was away for any extended
time? A. No, she was away another time.
Q. When was Miss Toguri away the first time
you mentioned?
A. That was when Cousens was away in the
hospital.
Q. Could that have been in the Spring of 1945?
A. I don't remember.
Q. Now, the other time that you referred to
when Miss Toguri was away from the station — how
long was she away from the station?
A. Approximately three weeks.
Q. Can you give us the date of that absence?
A. I cannot, but that was the time she got
married.
Q. Where was your office located with reference
to the broadcasting studio?
A. The broadcasting studio was on the first floor
and I believe it was the third floor where we were.
Q. Did you have any official duties at all on the
first floor? [9] A. No.
364 Iva Ikuko Toguri V Aquino
(Deposition of Lily Ghevenian.)
Q. Then it is quite possible that Miss Toguri
could have been there all the time?
A. On those occasions, it was usually somebody
else broadcasting. I know, because the voice that
came through the monitor was not hers.
Q. Was there a monitor — speaker — in your of-
fice?
A. Yes, there was. There was one all over the
building.
Q. Was this speaker on on times when the Zero
Hour was being broadcast ?
A. It was on all day and night.
Q. Did this noise disturb the girls in the typing
pool? A. No, it didn^t — it wasn't on so loud.
Q. You have testified that during the time you
worked at the radio station, one day you would
work from 8 to 5 in the afternoon and on the other
day you would work from 12 noon to 8 p.m. Was
this year schedule all the time you worked at the
station ?
A. We took the afternoon shift every other day
and on Sundays we took turns.
Q. Did you have any official capacity in monitor-
ing the program? A. No, I did not.
Q. You testified that Miss Toguri was ill and
away from the station after Major Cousens left —
you have testified, for some weeks — approximately
how many weeks? Could it have been two weeks?
A. I don't know.
vs. United States of America 365
(Deposition of Lily Ghevenian.)
Q. Could you give us your best recollection as to
how long it was?
A. I should say about a month and a half.
Q. Were you ever actually present in the radio
studio, when the Zero Hour program was being
broadcast ?
A. No, I have never seen Zero Hour being
broadcast.
Q. Then, so far as you know, your only knowl-
edge of the Zero Hour and the people who par-
ticipated in it were the voices through the monitor 1
A. That's right.
Q. Did any other typists in the typing pool ever
type a script for the Zero Hour? [10]
A. Yes.
Q. What other typists typed the Zero Hour
program scripts at times?
A. Anyone who had the time or who was free
did them — or who didn't have a definite assignment
to type for one person.
Q. Approximately what percentage of the scripts
did you type for the Zero Hour, ten per cent, fifteen
per cent? A. Just a very few.
Q. You made reference in you direct testimony
to the playing of the Stars and Stripes Forever
after the fall of Saipan. Was Miss Toguri respon-
sible for the playing of Stars and Stripes Forever
at that time ? A. I do not know that.
Q. Do you know who played Stars and Stripes
Forever ?
366 Iva Ikuko Toguri D' Aquino
(Deposition of Lily Ghevenian.)
A. George Ozasa.
Q. In your direct examination you said —
^^ Just a minute. I think the next questions on cross- i
examination relate to direct examination that was
not allowed to be read.
The Court; It is stipulated it may be deleted.
Mr. DeWolfe: There is quite a bit of it. The j
next two items went out on direct examination and i
we are trying to enter into an agreement as to what
portion of this we will skip as being pertinent to j
the part that was not read on direct examination, j
The Court: Proceed, I will rule.
Mr. DeWolfe: I want to skip to page 12, line 5
because the matters in betw^een that and what I last
read concern a question on direct examination that
was not read.
Mr. Collins : From line 14, page 11, down to and
including line 4 on page 12.
The Court: It may go out.
Mr. DeWolfe: Yes, sir.
The Court : So stipulated.
Mr. Collins : I am not consenting that it go out.
I am simply not opposing the objection made to
that by Mr. DeWolfe on the ground that it is not
proper cross-examination.
Mr. DeWolfe: I do not press that cross-exami-
nation because it related to matters objected to
which was sustained on direct examination. There-
fore I don't think it is necessary to read it. I ask
that it go out of the record.
vs. United States of America 367
(Deposition of Lily Ghevenian.)
The Court: So stipulated'?
Mr. Collins: I do not stipulate, if Your Honor
please. I mean after objection is made I think Your
Honor did make such a ruling.
The Court: Proceed.
(Q. In your direct examination, you said you
suspected Mr. Uno of being a Kempeitai agent.
Do you know definitely whether he was a Kempeitai
agent "^ A. No.
Q. In your direct examination, you said you
suspected Ruth Hayakawa of being a Kempeitai
agent. Do you know^ definitely w^hether she was a
Kempeitai agent?
A. I have learned since that she was not.
Q. Have you heard since that Mr. Uno was not?
A. Yes, I have heard he was not a Kempeitai.
Q. In other words, you had no reason to be
frightened of those persons?
A. Mr. Uno used to wear a uniform around the
station.
Q. Was this uniform a uniform of the Kempei-
tai?
A. The Kempeitai had the same uniform as the
ordinary soldier did.
Q. Was that the type that Mr. Uno was wear-
ing ? A. Yes, it was.
Q. You have testified, in your direct examina-
tion, that Miss Toguri brought food to Prisoners
of War. When did you hear about this — since the
war? A. I heard it very recently.
368 Iva Ikuko Toguri ID' Aquino
(Deposition of Lily Ghevenian.)
Q. In 1949?) [11]
(A. Yes.
Q. Of your own knowledge, do you know any
occasion, when Miss Toguri supplied food to Prison-
ers of War ?
A. I did not know, then I learned it later.)
Q. What did Miss Toguri call herself when she
was broadcasting the Zero Hour %
A. She used to say, ^'This is Orphan Annie."
Q. Did she ever refer to herself as anything
else on this program? A. No, she has not.
Q. Do you recall Miss Toguri referring to her-
self as ''Ann," when she was broadcasting the Zero
Hour? A. I do not remember that.
Q. Did Miss Toguri ever mention to you that
she was under any duress to work at the radio sta-
tion?
A. She mentioned once that Kempeis were
watching her.
Q. Miss Ghevenian, do you recall making a state-
ment to Frederick Tillman, of the Federal Bureau
of Investigation, recently?
A. Yes, I have talked to him.
Q. Do you recall telling Mr. Tillman that Miss
Toguri mentioned that she was never under any
duress of any kind?
A. Yes, I have, but I recall a few incidents as
I talk to you.
Q. Do you recall, also, at the same time that
you told Mr. Tillman that Miss Toguri was treated
vs. United States of America 369
(Deposition of Lily Ghevenian.)
in the same manner as any other Japanese or Nesei
working at the broadcasting station ?
A. Yes, she was.
Q. Was that statement true ?
A. I did not know at that time what ^^ duress"
meant.
Q. Was Miss Toguri treated like any other
Japanese and Nisei working in the station?
A. We were all treated alike.
Q. When did you talk to Mr. Tillman?
A. About a month ago.
Q. Have you changed your statement, concern-
ing duress, as a result of talking [12] to someone
else? A. Yes, I have.
Q. Do you know of your own knowledge that
Miss Toguri w^as forced to work for Radio Tokyo?
A. I do not know that.
Q. Did you ever hear any of the employees at
the radio station refer to Miss Toguri as *^ Tokyo
Eose''?
A. We have talked about it and we thought she
was ''Tokyo Rose."
Q. Was that the general opinion around the
radio station? A. Yes, it was.
Q. Was Miss Toguri pleased with her success,
with regard to broadcasting at Radio Tokyo?
A. She was always in a hurry and I did not
notice that.
Q. Do you recall making a statement to Mr.
Tillman, when you stated, and I quote: ''Miss To-
370 Iva Ikuko Togu ri D ^Aquino
(Deposition of Lily Ghevenian.)
guri talked to me about being referred to as ''Tokyo
Rose" and was happy about it and was all smiles.''
Did you sign his statement ? A. No, I did not.
Q. Do you not recall telling Mr. Tillman that?
A. No, I do not.
Q. Did you ever tell Mr. Tillman that Miss To-
guri mentioned being ''Tokyo Rose'' over the air?
A. I remember one time she said such a thing.
Q. That she made such a statement over the air?
A. As far as I remember, she did.
Q. Did any police official or Kempeitai ques-
tion you concerning Miss Toguri? A. No.
Q. Did you ever hear Miss Toguri broadcast,
where she referred to the Ameican troops as the
"Boneheads in the Pacific"?
A. No, I don't remember that.
Q. Do you recall any of the scripts that Miss
Toguri broadcast where she referred to herself as
"Your Enemy Ann"?
A. I don't remember that. [13]
Q. Do you recall anything that Miss Toguri
said while she was introducing these recordings ?
A. She was just introducing records and did
not say anything else.
Q. Did she say anything that was designed to
cause homesickness to the American troops?
A. No, she did not.
Q. Did you ever hear Miss Toguri say, in her
broadcast, statements to the effect — wouldn't it be
vs. United States of America 371
(Deposition of Lily Ghevenian.)
nicer to be home with your girl friend, rather than
fighting mosquitoes in the jungles'?
A. I don't remember her saying that.
Q. Was any of that material in the scripts that
you typed? A. No.
Redirect Examination
By Mr. Tamba:
Q. What kind of script did you type and for
what programs?
A. I typed commentaries, news, dialogues and
Prisoners' messages.
Q. Do you remember the date you talked with
Mr. Tillman? A. About a month ago.
Q. Do you know where he got your name?
A. He got it from several people.
Q. Did you sign any statement?
A. I did not sign any statement.
Q. Did he ask you if the Nisei and people who
were not Japanese Nationals were under constant
fear of the Kempeitai?
A. I think he did; I don't remember.
Q. Did he use the word ''duress"?
A. Yes, he did.
Q. Did you know what it meant?
A. I did not know at that time.
Q. Did you know of any Prisoners of War being
slapped around Radio Tokyo?
A. In Radio Tokyo? No.
372 Iva Ikuko Toguri D^ Aquino
(Deposition of Lily Ghevenian.)
Q. Were any other girls referred to as '^ Tokyo
Rose''?
A. In the radio station? [14]
Q. Yes.
A. They did not know who ^^ Tokyo Rose" was.
Q. Were any of the other girls suspected of be-
ing ' ' Tokyo Rose " ? A. Yes.
Q. Who were they?
A. Ruth Hayakawa and June Suyama.
Q. Any others ? A. That's all I remember.
Q. In answer to one of Mr. Story's questions,
you said you heard Miss Toguri broadcast over the
air that she was '^ Tokyo Rose"?
A. She did mention it; it was in the script.
Q. Do you know whose script that might have
been? A. No.
Q. Who brought you that script?
A. I do not remember whether it was Ken Oki
or Iva.
Q. It could have been Ken Oki who brought the
script that day? A. Yes.
Q. But you don't recall who actually broadcast
that remark? A. I do not.
Q. Do you remember anything said by Miss
Toguri when she handed you the script, as to
whether she had read it?
A. Sometimes she told me to rush it, because
she had not read the script yet.
vs, TJyiited States of America 373
(Deposition of Lily Ghevenian.)
Recross-Examination
By Mr. Story :
Q. Have you talked to Miss Toguri's husband
since you were interviewed by Mr. Tillman?
A. I met Mr. D 'Aquino at Mr. Tamba's office.
Q. Did you have a discussion with Mr. D 'Aquino
at that time ? A. No, I did not.
Q. Have you talked to Mr. D 'Aquino at any
other time?
A. I met him at Mr. Tamba's hotel and that's
the only time I saw him.
Redirect Examination
By Mr. Tamba:
Q. Miss Ghevenian, you have talked to many
people about this? [15] A. Yes.
Q. You've come to my hotel on one occasion and
again this morning? A. Yes.
Q. And the first time you came to my hotel,
there were many people present, weren't there?
A. I remember only three persons other than
Mr. Tamba — Nakamura, Ono and D 'Aquino.
Q. I asked you what you knew about the case?
A. Yes.
Q. And no one has told you what to testify?
A. No.
Q. And you were told to testify to the truth
and nothing but the truth? A. Yes.
Q. You have had discussions with outsiders and
374 Iva Ikuko Toguri D' Aquino
(Deposition of Lily Ghevenian.)
other people, regarding this case, and you asked
other people why they were testifying against Iva
when she did nothing wrong?
A. Yes, I have talked to them.
Q. And what did they tell you in substance?
Mr. De Wolfe: Objected to as hearsay.
The Court: Submitted?
Mr. Collins: Yes.
The Court : The objection is sustained.
(A. These people who testify against her, they
told me to go ahead and have a good time and get
a free ride to the United States like they did.)
Q. Will you tell us who those people are, if you
remember? A. Ken Oki did.
Q. Anyone else?
A. Other people who went on that trial won't
even say ^^ Hello" to me.
Q. They are trying to avoid you?
A. That's right.
Q. Who is trying to avoid you?
A. Nakamoto.
Q. Anyone else, if you know? A. No.
/s/ LILY GHEVENIAN. [16]
Japan,
City of Tokyo,
American Consular Service — ss:
I do solemnly swear that I will truly and im-
partially take down in notes and faithfully tran-
vs. United States of America 375
scribe the testimony of Lily Ghevenian, a witness
now to be examined, so help me God.
/s/ MARION A. PETERSON.
Subscribed and sworn to before me this eighteenth
day of April, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the United
States of America.
[American Consular Service Seal.]
Service No. 578a; Tariff No. 38; No fee pre-
scribed.
Japan
City of Tokyo,
American Consular Service — ss.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D 'Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
Tamba, counsel for the defendant Iva Ikuko Toguri
376 Iva Ikuko Togiiri D^ Aquino
D 'Aquino I examined Lily Ghevenian, at my office
in Room 335, Mitsui Main Bank Building, Tokyo,
Japan, on the eighteenth day of April, A.D. 1949,
and that the said witness being to me personally
known and known to me to be the same person
named and described in the interrogatories, being by
me first sworn to testify the truth, the whole truth,
and nothing but the truth in answer to the several
interrogatories and cross-interrogatories in the
cause in which the aforesaid stipulation, court order,
and request for deposition issued, her evidence was
taken down and transcribed under my direction by
Marion A. Peterson, a stenographer who was by me
first duly sworn truly and impartially to take down
in notes and faithfully transcribe the testimony of
the said witness Lily Ghevenian, and after having
been read over and corrected by her, was subscribed
by her in my presence ; and I further certify that I
am not counsel or kin to any of the parties to this
cause or in any manner interested in the result
thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this second day of
May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 743 ; Tariff No. 38 ; No fee prescribed.
[Endorsed] : Filed May 9, 1949.
vs. United States of America 377
In the Southern Division of the United States
District Court for the Northern District of
California
No. 31712 R
UNITED STATES OP AMERICA,
Plaintiff,
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OP RUTH HAYAKAWA
Deposition of Ruth Hayakawa, taken before me,
Thomas W. Ainsworth, Vice Consul of the United
States of America, in Mitsui Main Bank Building,
Room 335, in Tokyo, Japan, under the authority of
a certain stipulation for taking oral designations
abroad, and upon order of the United States Dis-
trict Court, made and entered March 22, 1949, in
the matter of United States of America vs. Iva
Ikuko Toguri D 'Aquino, pending in the Southern
Division of the United States District Court, for
the Northern District of California, and at issue be-
tween the United States of America vs. Iva Ikuko
Toguri D 'Aquino.
The plaintiff appearing by Prank J. Hennessey,
United States District Attorney ; Thomas DeWolf e,
Special Assistant to the Attorney General, and Noel
Story, Special Assistant to the Attorney General,
and the defendant, appearing by Wayne N. Collins
and Theodore Tamba.
The said interrogations and answers of the wit-
378 Iva Ikuko Togiiri B 'Aquino
ness thereto were taken stenographically by Marion
A. Peterson and were then transcribed by her under
my direction, and the said transcript being there-
after read over correctly to said witness by me. was
then signed by said witness in my presence.
It is Stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objections to the use of the dep-
osition or any part of the deposition, by plaintiff,
on the plaintiff's case in chief, shall be reserved to
the time of trial in this cause.
SUMI RUTH HAYAKAWA
of Tokyo, Japan, engaged in foreign trade of law-
ful age, being by me first duly sworn, deposes and
says:
Questions propounded by Mr. Tamba :
Q. Your name is Ruth Hayakawa ?
A. Yes; Sumi Ruth Hayakawa.
Q. And you live at Tokyo? A. Yes.
Q. And you are in business in Tokyo ?
A. That's right.
Q. And you are one of the directors of the
Yanase Export and Import Company, Limited?
A. That's right.
Q. And you are also engaged in other busi-
nesses ?
vs. United States of America 379
(Deposition of Sumi Ruth Hayakawa.)
A. That's right; Director of Imperial Enter-
prises and Agent for the Vulcan Trading Company,
India.
Q. And you were born in Japan "^ A. Yes.
Q. And you are a citizen of Japan ?
A. Yes.
Q. You were educated in the United States.
Where "? A. Los Angeles.
Q. And how long have you resided in Japan?
A. Since my return to Japan in 1941.
Q. Were you ever employed by Radio Tokyo?
A. Yes.
Q. When did you enter the employ of Radio
Tokyo? A. Mid- April, 1943.
Q. And how long were you employed with Radio
Tokyo? [2*]
A. I was officially employed until April, 1945.
Q. Are you acquainted with Iva D 'Aquino?
A. Yes, I am.
Q. When did you meet her ?
A. I met her in the Summer of 1943.
Q. Where? A. At the radio station.
Q. What was she doing at that time ?
A. She came in as a typist and I believe she was
a typist when I met her.
Q. Do you know whether or not she ever par-
ticipated in a radio broadcast known as the Zero
Hour? A. Yes.
Q. When did she start broadcasting on the Zero
*Page nmnberiiig appearing at bottom of page of original
Reporter's Transcript.
380 Iva Ikuko Togiiri D' Aquino
(Deposition of Sumi Ruth Hayakawa.)
Hour? A. I think, in the Pall of 1943.
Q. And how long was she on this program?
A. She was there when I left in February, 1945.
Q. Do you know who was in the cast of that pro-
gram?
A. Yes; Norman Reyes and Iva, Ken Oki,
George Nakamoto, Mr. Oshidari, Ken Ishii, Sash
Moriyama.
Q. Were there any women, besides Iva, on that
program? A. Yes, Mieko Furuya.
Q. Was she Mrs. Oki? A. Yes.
Q. Was Mary Ishii on that program ?
A. Not while I was there.
Q. Was Mrs. Norman Reyes ?
A. She was on the announcing staff; she might
have pinch-hit for Iva.
Q. Did you ever?
A. Yes ; in the Fall of 1943, when Iva started to
broadcast, I took over the Sunday evening broad-
cast in Iva's absence.
Q. Did you ever, on any other occasion?
A. I believe I did. [3]
Q. Do you know of any other women who sub-
stituted for Iva in her absence ?
A. Mieko Furuya (Mrs. Oki) might have.
Q. Do you know of any others ?
A. I doubt whether the other women substituted.
Q. Were there any other women announcers in
Radio Tokyo, besides you and the others you men-
tioned?
vs. United States of America 381
(Deposition of Sumi Ruth Hayakawa.)
A. Yes; there was June Suyama and Kay Fuji-
wara, and Margaret Kato, and Kathryn Muraoka
(Mrs. Reyes).
Q. Do you know the girl who broadcast on the
German Hour? A. Yes.
Q. What was her name ?
A. Matsunaga; I can't think of her first name.
Q. Do you know where that girl is today?
A. I heard, in N'ew Jersey.
Q. Do you know where June Suyama is?
A. She died about a year ago.
Q. Do you know a man, named Takano?
A. Yes, I did.
Q. Who was he ?
A. He was personnel employment chief — head
of personnel employment at Radio Tokyo.
•Q. Where is that man today?
A. He died in 1944 or 1945, during the air-raid.
Q. Incidentally, when did the air-raids increase
in intensity in this area ?
A. The first air-raid was in November, 1944, and
then again in January and February, 1945, then I
left Tokyo. Judging from the paper, it continued
in March and April.
Q. Did you ever return to Tokyo in March and
April?
A. I returned to Tokyo the first of April and
there was a severe air-raid that night and several
during my two weeks' stay in Tokyo.
Q. Do you know a man by the name of Major
Cousens? A. Yes, I do. [4]
382 Iva Ikuko Toguri D' Aquino
(Deposition of Sumi Ruth Hayakawa.)
Q. Who was he ?
A. He was a Prisoner of War, who was working
at the radio station.
Q. Did he train you to broadcast ?
A. No, he did not train me at the beginning —
it was Ted Wallace who trained me. Later Major
Cousens assisted me when I read commentaries.
Q. When he assisted you, will you tell me what
he did'?
A. He coached me, by asking me to read and re-
read his commentaries, telling me where to empha-
size and where to pause.
Q. Do you know who coached or trained Mrs.
D 'Aquino ?
A. I heard that both the Prisoners of War
worked with Mrs. D 'Aquino, coaching her for radio.
Q. Did you ever see her with either of these two
men — coaching or training Mrs. D 'Aquino?
A. Yes, I think I have. I remember Ted Wal-
lace assisted Iva at the microphone.
Q. What kind of a microphone voice did Mrs.
D 'Aquino have, if you know ?
A. I didn't think it was good.
Mr. DeWolf : Move that go out as a conclusion
and opinion.
The Court: What she thought of the voice may
go out. The objection will be sustained. The jury
will disregard it.
Q. Do you remember Mrs. D 'Aquino being away
from the radio station for periods of time ?
vs. United States of America 383
(Deposition of Sumi Ruth Hayakawa.)
A. Yes; I didn't know for what reasons, but she
was frequently away from the station. The staff
complained about her absences, especially Ken Oki.
Q. When you substituted for Mrs. D 'Aquino,
who selected your records ?
A. I believe Cousens or Ted Wallace selected the
records and made the script, which I read.
Q. Do you know who was the Saturday Night
Party Girl? A. Mrs. Oki.
Q. What did she do on the program ?
A. She came on every Saturday, as Saturday
Night Party Girl Betty.
Q. Did she introduce records?
A. Yes, she introduced music.
Q. Did you see Prisoners of War around that
radio broadcasting room ?
A. The only Prisoners of War around during
the Zero Hour, during the late afternoon — they
were Wallace and Cousens. There were other Pris-
oners of War around at other times, who used the
same studio. They were around during the early
afternoon, whereas the Zero Hour Prisoners of
War w^ere late afternoon. [5]
Q. Who was in charge of the Prisoners of War?
A. I don't know, in the late afternoon.
Q. Did you ever see Nakamoto with the Prison-
ers of War?
A. Nakamoto had his private room, in which
Cousens and Wallace worked.
384 Iva Ikuko Togiiri D^ Aquino
(Deposition of Sumi Ruth Hayakawa.)
Q. Do you know what the Kempeitai was during
the war?
A. The Kempeitai was the Japanese Army po-
licemen.
Q. Were you ever apprehended by the Kempei-
tai?
Mr. DeWolfe: I object to that as incompetent,
irrelevant and immaterial, improper, not germaine
to the issue.
Mr. Collins: I will point out that if she was
there at the time, as the testimony indicates, the ac-
tivities of the Kempeitai would be pertinent to the
issue.
Mr. DeWolfe : As to what they did, on this par-
ticular witness that has nothing to do with the de-
fendant.
Mr. Collins : Well, I think that the next answer
would explain that. I mean, I think the answer it-
self would explain that.
The Court : I will strike it out if it has no place
in the record. Eead it.
A. Yes, I was questioned by the Kempeitai in
April, 1945, and detained over night. They called
me in because I frequented the Swedish Legation,
but most of the questioning was concerning Radio
Tokyo. They wanted to know who in Radio Tokyo
were Pro- American and who was whispering that
Japan was losing the war.
The Court: Proceed, the question and answer
mav stand.
i vs. United States of America 385
(Deposition of Sumi Ruth Hayakawa.)
I Q. Do you know if Mrs. D 'Aquino broadcasted
any propaganda and anything detrimental to the
United States?
j A. No, I have not heard her broadcast anything
detrimental to America.
Q. Do you know of any incidents wherein Mrs.
D 'Aquino indicated that she was in fear of the
I Kempeitai?
! A. She never told me outright, except on one
occasion — that was when we of the radio station had
a party at Kathryn Muraoka's home. Everybody
I started to dance, but when Iva was asked to dance,
she refused; so I asked her why she didn't dance,
and she said that dancing was prohibited and the
Kempeitai would call us or pick on us if we danced.
Q. Did you ever see Kempeitais or persons sus-
pected of being Kempeitais around the radio sta-
tion, while you were there ?
A. Yes, there were many Kempeitais and a few
were pointed out to me as Kempeitais. Also, we
did not know among ourselves who were Kempeitais.
Q. Do you recall who was pointed out to you as
Kempeitai or suspected of being Kempeitais?
A. I don't recall the names or faces of the Kem-
peitai, there were so many around the radio station,
but among the employees of the radio station, I
personally had a feeling that Mr. Nii was assisting
the Kempeitai; I was afraid to talk to him. [6]
Q. While you were at the radio station, did you
ever hear anyone mention the name *^ Tokyo Rose?"
A. Yes. I first heard the name ^^ Tokyo Rose"
386 Iva Ikuko Toguri B^ Aquino
(Deposition of Sumi Ruth Hayakawa.)
in 1944, when Ken Oki asked me whether I had
read the newspapers of that day. I recall definitely
that it was Sunday evening and when I told Ken
Oki that I had not seen the papers, he showed me a
eo])y of news that came in from the Foreign Office,
which said the Gr.I.s in the South were enjoying the
radio programs from Tokyo, especially the music
and the voice of a young lady, and this article said
that the woman's voice was very soft and appealing
and they liked her program, and they wondered who
^' Tokyo Rose" was; so, I recall asking Ken who was
'^ Tokyo Rose" and Ken told me that it was I, be-
cause the article said Sunday evening and I was on
the Sunday evening program; and, also. Ken
pointed out that my voice was soft and appealing,
whereas Iva's voice was not.
Q. Do you recall Mr. Oki, on another occasion,
saying: ^^Boys, we are making history; the monitor
picked up the ^ Tokyo Rose' story. A Seattle store
would like to sponsor the program. " ?
A. No, I do not recall.
Q. Do you remember Ruth Matsunaga, who was
the girl on the German Hour, I believe ?
A. I don't know whether her first name was
Ruth or not, but her last name was Matsunaga.
Q. Did she resemble Mrs. D 'Aquino?
A. Yes, she was round-faced and plump, like
Iva was — more inclined to be square-jawed.
Q. Do you recall whether or not Mrs. D 'Aquino
had difficulty with the Japanese language %
vs. United States of America 387
(Deposition of Sumi Ruth Hayakawa.)
A. Yes. I don't believe she knew the language
as well as I, and I am pretty poor.
Q. Do you know whether she was registered as
an alien with the Japanese police and needed travel
permits, in order to leave the city ?
A. Yes, I think I knew that; I don't know
whether I heard it from her or [7] others, but I
knew that she was registered as an alien and had
difficulty traveling in Tokyo.
Q. Did you know a Charles Yoshii ?
A. Yes, Chuck Yoshii was at the radio station
for many years before I came and was considered
one of our best announcers.
Q. Did you know a George Noda ?
A. Yes, George Noda, I believe, entered the
radio station a few months before I did.
Q. What did he do at the radio station?
A. George Noda was on the announcing staff,
reading news and commentaries.
Q. Did you know a Dorsey Kurokawa ?
A. Yes, Dorsey Kurokawa came to the radio
station in the latter part of 1944 and was on the
regular announcing staff, reading news and com-
mentaries.
Q. What type of music was introduced by Mrs.
D 'Aquino?
A. Iva's program consisted of jazz and popular
I music, and light operas and semi-classics.
Q. Did you know a Mrs. Topping?
A. Yes, I know her very well.
388 Iva Ikuko Toguri D' Aquino
(Deposition of Smni Ruth Hayakawa.)
Q. Was she connected with Radio Tokyo?
A. Mrs. Topping was not connected with Radio
Tokyo, but she came in periodically to broadcast.
Q. Did you accompany Mrs. Topping to and
from the radio station on those occasions ?
A. Yes, I was always with Mrs. Topping when
she came to the radio station.
Q. Did you ever help Mrs. Topping prepare
scripts ?
A. I have helped Mrs. Topping a few times with
her script, typing them for her.
Q. Did you know a Miss Ward? A. Yes.
Q. Who was she?
A. Miss Ward was living with Mrs. Topping
and is a pianist.
Q. Did she ever come to the radio station? [8]
A. Yes, Miss Ward has played the piano over
the air a few times.
Q. Did you have occasion to observe whether or
not Mrs. D 'Aquino was friendly with the Japanese
personnel around Radio Tokyo, or was she more
friendly with Prisoners of War ?
A. No, she was not friendly with the Japanese;
she was always polite to all of us, but kept herself
away from our large staff room and confined her-
self to the Zero Hour staff room and the Prisoners
of War.
Q. Miss Hayakawa, you had occasion a number
of times to take food and things to Prisoners of
War, did you not ?
A. While the three Prisoners of War, Cousens,
vs. United States of America 389
(Deposition of Sumi Ruth Hayakawa.)
Wallace and Reyes were in our large staff room,
when I entered Radio Tokyo, I felt sorry for their
food situation, and they often spoke of the lack of
vegetables, so I used to buy fresh vegetables and
pass it to them. Later I passed several American
magazines which I had brought back from the
States to the Prisoners of War.
Q. And that was done secretly? A. Yes.
Q. Did you know of Mrs. D 'Aquino doing the
same thing?
A. She might have, but she would not have said
anything about it, just as I have never told what I
had done.
Q. You told me that the other day and that is
one of the first times you've mentioned it?
A. Yes.
Q. Did you ever recall Mrs. D 'Aquino broad-
casting over the radio about the loss of ships ?
A. No, I have never heard her broadcast any-
thing but music announcements.
Q. Were you present in the radio station when
the fall of Saipan was announced by the Japanese
Government as flash news and when the Zero Hour
program was interrupted for that occasion ?
A. I heard about it, but I don't believe I was
there that day — I don't believe so, it may have been
my day off.
Cross-Examination
By Mr. Story :
Q. Miss Hayakawa, you mentioned the names
390 Ivalkuko To guriD' Aquino
(Deposition of Sumi Ruth Hayakawa.)
of several female announcers at Radio Tokyo.
Were any of these people regular participants on
the Zero Hour? [9]
A. No, the women announcers on the Zero Hour
were only Iva D 'Aquino and Mieko Oki.
Q. Did Mrs. Oki have a regular part in all the
programs ?
A. Yes, after she joined the Zero Hour staff,
she no longer belonged to our regular announcers
staff.
Q. Did she participate every day after she
joined or did she work from time to time ?
A. She was not on daily, but confined to Satur-
day night, except when she substituted for Mrs.
D 'Aquino, in Mrs. D 'Aquino's absence. But she
was at the radio station every day. I used to see
her every day. We were quite friendly.
Q. Was the Sunday broadcast, at the time Zero
Hour was usually broadcast, called the Zero Hour
program?
A. No. Zero Hour program was the program of
music by Norman Reyes. To my knowledge, the
entire program was not called the Zero Hour and
the Zero Hour program on Sunday evenings fol-
lowed the music program that I broadcasted for.
The script was written by Cousens.
Q. When you were broadcasting, did you ever
refer to yourself as ^^ Orphan Ann" ?
A. No, I have never referred to myself as ^^ Or-
phan Ann." On Sunday evenings, it was a semi-
classical music program.
vs. United States of America 391
(Deposition of Sumi Ruth Hayakawa.)
Q. Did you ever refer to yourself as ^^Ann'' on
any program?
A. I have never referred to myself as *^Ann."
Q. In any of the broadcasts that Mrs. D 'Aquino
made, that you heard, did you ever hear the Amer-
icans referred to as the ^^ Orphans of the Pacific'"?
A. I don't recall specific details of any of
her programs and can't say that I exactly remem-
ber.
Q. Did you ever hear her say in a broadcast —
the Americans in the Pacific were ^'Bone Heads"?
A. No, I have never heard her call such names.
Q. Have you ever heard Mrs. D 'Aquino make a
broadcast, saying that it was a pity that the Amer-
icans were in the Pacific fighting mosquitoes rather
than being home?
A. No, I don't recall such details of her script.
Q. What did Mrs. D 'Aquino call herself on the
radio ?
A. In the earlier part of Mrs. D 'Aquino's music
program, she had no name, but later on they ex-
tended the program and she began to call herself
as '^Orphan Ann."
Q. Did any other announcer or any other par-
ticipant use the name ^^ Orphan Ann," other than
Mrs. D 'Aquino, to your knowledge ?
A. To my knowledge, no one, other than Mrs.
D 'Aquino, called herself '^Orphan Ann."
Q. Did you hear the Zero Hour program broad-
cast regularly?
392 Iva Ikuko Toguri D' Aquino
(Deposition of Sumi Ruth Hayakawa.)
A. I heard the broadcast frequently, but not
regularly.
Q. Did Mrs. D 'Aquino ever tell you that she
was forced to work in Radio Tokyo or under duress
at any time ?
A. She has never told me of being under duress
or forced to broadcast, but I had the impression
that she was. She's never talked very much to me
of herself or of her program.
Q. Did you ever see anyone threaten Mrs.
D 'Aquino in any way, when she was at Radio
Tokyo?
A. No, I have not. But no one has seen me being
questioned by the Kempeitai either. They work
very secretly.
Q. These Prisoners of War that you mentioned
in your testimony, who worked in the radio station
— what did they do ?
A. Writing scripts and announcing, presenting
skits and plays.
Q. These Prisoners of War, then, that Mrs.
D 'Aquino gave food to, were collaborators, were
they not, with the Japanese Government ?
A. They were working at the radio station by
order of the Japanese Army, but I wouldn't call
it collaborating.
Q. Did you ever see copies of the orders, order-
ing Prisoners of War to work for the Japanese
Government ? A. No.
vs. United States of America 393
(Deposition of Sumi Ruth Hayakawa.)
Q. Then that is only an opinion of yours?
A. I guess so. [11]
Redirect Examination
By Mr. Tamba :
Q. Did you ever know that Mrs. Reyes broad-
cast on the Zero Hour ?
A. She wasn't the regular announcer on the
Zero Hour. I don't know whether she ever broad-
casted or not.
Q. Were there any other girls who broadcast
introductions to music on Radio Tokyo, besides
Mrs. D 'Aquino?
A. Yes, all the women announcers specialized in
announcing music programs.
Q. What time of the day did you go on the air
on Sundays?
A. My schedule of announcing programs
changed frequently during my years at the radio
station. There were Sundays when I had an after-
noon symphony program (music concert) and then
the Sunday Concert on the same transmission as the
Zero Hour.
Q. That would be between 6 and 7 p.m.?
A. My recollection of that transmission was
from 5 :40 to 6 — twenty minutes.
Q. How long was Mrs. D 'Aquino's program, if
you remember?
A. Her program was about twenty minutes.
Q. How many records did she play on the pro-
394 Iva Ikuko Toguri D' Aquino
(Deposition of Sumi Ruth Hayakawa.)
gram, if you remember'? A. I can't say.
Q. How many records did you play when your
program was from 5 :40 to 6 p.m. ?
A. I think I usually played about six records.
Mr. Tamba addressing Mr. Story :
Now I'm asking these questions, Mr. Story, for
the sole purpose of showing general conditions
about the radio station and none other.
Redirect Examination
Continued
By Mr. Tamba :
Q. Did you ever tell anyone that you were ar-
rested by the Kempeis ?
A. I didn't mention my arrest until after the
war was over.
Q. Were you in fear of the Kempeitai all of the
time that you worked at the radio station ?
Mr. DeWolfe: I object to that as immaterial,
improper, irrelevant and incompetent.
The Court: The objection is sustained.
Mr. Collins: I might point out, if Your Honor
please, that the witness has testified that the Kem-
peitai were at Radio Tokyo constantly and
Mr. DeWolfe: I might say. Your Honor, about
that, that the question was, ''Were you in fear of
the Kempeitai — ", if Your Honor wishes to hear
from me?
The Court : If counsel is through ?
Mr. Collins : Yes. And I might say, it is a fairly
long answer, if Your Honor please, but I think that
vs. United States of America 395
(Deposition of Sumi Ruth Hayakawa.)
it has a direct bearing upon the material issue and
relates to the fact that there were Kempeitai agents
at Radio Tokyo constantly. She so testified in the
deposition and now she gives a complete explana-
tion, together with certain details, that actually
transpired at Radio Tokyo.
The Court: Read the question. I think I sus-
tained the objection.
(Question reread by Mr. Collins).
The Court: The objection will be sustained.
Mr. Collins : That was the last question that ap-
pears on the original.
Mr. Tamba : That is it, that is the last question.
The answer is quite long.
(A. I wasn't aware of fear of the Kempeitai
until toward the end of 1943 and the rest of the
time, and it was a constant dread from the Summer
of 1944, in that you didn't dare to talk to anyone,
whether they were your friends or not, of personal
opinions or viewpoints. I remember one detail ; the
Prisoners of War asked me once what my pleasures
were — what I did for (12] amusement — and I re-
member saying that flower arrangement was the
only source of pleasure and recreation for me. That
remark was considered unpatriotic by the Kempei-
tais and Mrs. Oki (Mieko Furuya), whom I con-
sidered one of my closest friends at the time,
warned me that the Kempeitai might call me in and
reprimand me for telling the Prisoners of War
tliat. And for talking or being seen with the Pris-
396 Iva Ikuko Toguri D' Aquino
(Deposition of Sumi Ruth Hayakawa.)
oners of war also. She said that the Kempeiti had
told her to tell me. It scared me to the extent where
I no longer went down to the studio to listen to
their program, except only on the occasions when I
was called in to participate in the Prisoners of War
program. It was impossible to discuss interviews
by the Kempeitai with anyone, because when I was
detained by the Kempeitai, before they released me,
I had to sign a statement which they wrote because
I could not write Japanese, which they read to me
and explained to me, which meant that I was not
to tell anyone, not even my mother and father, that
I was questioned and detained by the Kempeitai.
If I told anyone about my detention, the Kempeitai
will not be held responsible for anything that might
happen to me. I had to sign that and put my thumb
print on it. Of course, they told me to sign the
statement, telling me incidents of people being
questioned and detained and not coming out of the
Kempeitai Headquarters alive.)
/s/ SUMI RUTH HAYAKAWA.
Japan,
City of Tokyo,
American Consular Service — ss:
I do solemnly swear that I will truly and impar-
tially take down in notes and faithfully transcribe
the testimony of Ruth Hayakawa, a witness now to
be examined. So help me God.
/s/ MARION A. PETERSON.
vs. United States of America 397
Subscribed and sworn to before me this eight-
eenth day of April, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 577a; Tariff No. 38; No fee pre-
scribed.
Japan,
City of Tokyo,
American Consular Service — ss :
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D 'Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
Tamba, counsel for the defendant Iva Ikuko Toguri
D 'Aquino I examined Sumi Ruth Hayakawa, at my
office in Room 335, Mitsui Main Bank Building,
398 Iva Ikuko Toguri D^ Aquino
Tokyo, Japan, on the eighteenth day of April, A.D.
1949, and that the said witness being to me person-
ally known and known to me to be the same person
named and described in the interrogatories, being
by me first sworn to testify the truth, the whole
tinith, and nothing but the truth in answer to the
several interrogatories and cross-interrogatories in
the cause in which the aforesaid stipulation, court
order, and request for deposition issued, her evi-
dence w^as taken down and transcribed under my
direction by Marion A. Peterson, a stenographer
who was by me first duly sworn truly and impar-
tially to take down in notes and faithfully tran-
scribe the testimony of the said witness Sumi Ruth
Hayakawa, and after having been read over and
corrected by her, was subscribed by her in my pres-
ence; and I further certify that I am not coun-
sel or kin to any of the parties to this cause or in
any manner interested in the result thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this second day
of May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 746 ; Tariff No. 38 ; No fee prescribed.
[Endorsed] : Filed May 9, 1949.
vs. United States of America 399
In the Southern Division of the United States Dis-
trict Court for the Northern District of Cali-
fornia.
No. 31712 R
UNITED STATES OF AMERICA,
Plaintiff,
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OF FOUMY SAISHO
Deposition of Foumy Saisho, taken before me,
Thomas W. Ainsworth, Vice Consul of the United
States of America, in Mitsui Main Bank Building,
Room 335, in Tokyo, Japan, under the authority
of a certain stipulation for taking oral designations
abroad, and upon order of the United States Dis-
trict Court, made and entered March 22, 1949, in
the Matter of the United States of America vs.
Iva Ikuko Toguri D 'Aquino, pending in the South-
ern Division of the United States District Court,
for the Northern District of California, and at issue
between the United States of America vs. Iva Ikuko
Toguri D 'Aquino.
The plaintiff, appearing by Frank J. Hennessy,
United States District Attorney ; Thomas DeWolf e.
Special Assistant to the Attorney General, and
Noel Story, Special Assistant to the Attorney Gen-
eral, and the defendant, appearing by Wayne N.
Collins and Theodore Tamba.
400 Iva Ikuko Toguri D' Aquino
The said interrogatories and answers of the wit-
ness thereto were taken stenographically by Irene
CuUington and were then transcribed by her under
my direction, and the said transcriptions being
thereafter read over correctly to said witness by
me and then signed by said witness in my presence.
It is Stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objections to the use of the
deposition, or any part of the deposition, by plain-
tiff, on the plaintiff's case in chief, shall be reserved
to the time of trial in this cause.
POUMY SAISHO
of Tokyo, Japan, employed by the ^^ Readers Di-
gest," Japanese Branch, of lawful age, being by me
duly sworn, deposes and says:
Direct Examination
By Mr. Theodore Tamba:
Q
state your full name, please?
A. Foumy Saisho.
Q. Miss Saisho, where were you born?
A. Japan.
Q. You are a Japanese National?
A. Yes.
Q. You have been in the United States, have
you not? A. Yes.
Q. When were you in the United States.
vs. United States of America 401
(Deposition of Foumy Saisho.)
A. From 1930 to 1933.
Q. You were attending the University of Michi-
gan ? A. Yes.
Q. What is your present business or occupa-
tion?
A. I am with the Editorial Department of the
Readers Digest, Japan Branch.
Q. Were you ever connected with Radio Tokyo ?
A. Yes.
Q. For how long a period of time?
A. From August, 1935, to 1945, September, I
think.
Q. What work did you do at Radio Tokyo?
A. I was chief translator.
Q. What did you translate. Miss Saisho?
A. Japanese commentaries. Before the war I
used to translate cultural subjects and news from
Japanese to English.
Q. During the war what did you do?
A. I was in the Lecture Department translat-
ing Japanese into English.
Q. Do you know Iva Toguri, also known as Iva
D 'Aquino? A. Yes.
Q. When did you quit Radio Tokyo?
A. When?
Q. Yes. A. Around 1943.
Q. How long did your acquaintanceship con-
tinue ?
A. Until around the end of the war. Since
then I have not seen her.
402 Iva Ikuko Toguri D' Aquino
(Deposition of Foumy Saisho.)
Q. Did you ever work on any of her script?
A. No, I have not.
Q. What did Miss Toguri do at the radio sta-
tion'?
A. At first she was with the business depart-
ment. Later on she became an announcer. For
Major Cousens' program, the ^^Zero Hour."
Q. Do you know who prepared her script?
A. Major Cousens.
Q. Who coached her? A. Major Cousens.
"Q. What kind of script did she read?
A. She read introductions to music. [3*]
Q. What kind of music was that?
A. Usually American jazz.
Q. Did Miss Toguri ever broadcast the loss of
ships that you know of? A. No.
Q. Who did broadcast that type of news?
A. That would be broadcast by the news an-
nouncer.
Q. Do you know who was on the Zero Hour
program besides Miss Toguri and Major Cousens?
A. Ken Oki, Ken Ishii, Miss Hayakawa and
Moriyama, and I think a person called Ozaki.
Q. Were any women on that program besides
Miss Toguri? A. Not regularly.
Q. Did any women take part on that program
at any time? A. Yes.
Q. Who were they?
* Page numbering appearing at bottom of page of original
Reporter's Transcript.
vs. United States of America 403
(Deposition of Foumy Saisho.)
A. Ruth Hayakawa, Mary Ishii, and the pres-
ent Mrs. Oki.
Q. What name did she use in broadcasting?
A. ^^ Annie," I think.
Q. Who gave her that name?
A. To the best of my knowledge, Major Cousens.
Q. Did you ever hear the name '^ Tokyo Rose"
at the radio station? A. No.
Q. Did you ever hear anybody mention the name
*' Tokyo Rose" in conversation with you?
A. There was mention of ^^ Tokyo Rose" toward
the end of the war.
Q. Did you ever have a conversation with Ken
Oki about Tokyo Rose? A. Yes.
Q. What was that conversation?
A. I asked him if Tokyo Rose indicated any
particular person. He said that it did not repre-
sent any particular person, but it was used in
broadcasting to the American soldiers. [4]
Q. Did you ever have a conversation with Mr.
Oki to the effect that he thought he was entitled
to one-half of the royalties for the use of ^^ Tokyo
Rose"? A. Yes.
Q. Where did that conversation occur?
A. Almost immediately after the surrender,
early part of September.
Q. Where? A. Radio Tokyo.
Q. Did you ever have a conversation with Ken
Oki in which he said ^'Iva can't do this to us"?
A. Yes.
404 Iva Ikuko Toguri D^ Aquino
(Deposition of Foumy Saisho.)
Q. Was that in reference to the use of the name
^^ Tokyo Rose''? A. Yes.
Q. Did you ever hear or know of Mrs. D 'Aquino
broadcasting about men ineligible for the Ameri-
can army fraternizing with women who had been
left at home? A. I don't recall that.
Q. Did you ever know of Mrs. D 'Aquino broad-
casting anything other than what was on her script %
. A. No.
Q. Were there any other women at Radio Tokyo
besides those you mentioned and Mrs. D 'Aquino
who broadcast news and music % A. Yes.
Q. Who were they?
A. Suyama, June, I think that was all.
Q. Kathleen Fujiwara, do you know her?
A. Yes.
Q. Did she broadcast news and announce music ?
A. She announced music, I think.
Q. Are you familiar with the German Hour?
A. I heard a voice once. [5]
Q. Was that a woman's voice? A. Yes.
Q. What did she broadcast?
A. News, I think. I didn't pay much attention
to it, but it was in English.
Q. What kind of a broadcasting voice did Miss
Toguri have?
A. She had a rather masculine sort of voice, low
and throaty.
Q. What kind of music did she introduce ?
A. Chiefly, American jazz, I think.
vs. United States of America 405
(Deposition of Foumy Saisho.)
Q. Do know if the Japanese Government had
other radio stations besides Radio Tokyo?
A. Yes.
Q. Where? A. In the South.
Q. Name some of the places?
A. Formosa, Batavia, and the Philippines.
Q. Have you been present at conferences at
Radio Tokyo where those stations were discussed?
A. Yes.
Q. Was Major Tsuneishi present at the time?
A. Yes.
Q. Did you learn that Mrs. D 'Aquino became
married during the war?
A. No, I did not know that.
Q. Have you learned since ? A. Yes.
Q. Did Mrs. D 'Aquino ever remain around the
station after working hours?
A. I don't believe so.
Q. Did you ever have conversations with Mrs.
D 'Aquino about the war.
A. Yes, occasionally. [6]
Q. In particular, on one occasion when she
stated, ^'This is an awful country"? A. Yes.
Q. Were her attitudes and expressions pro-
American or pro- Japanese ?
A. Pro-American.
Mr. DeWolfe: Just a minute, Mr. Tamba. I
object to that as calling for a conclusion and being
too speculative and conjectural.
The Court: Submitted?
Mr. Collins: Yes.
406 Iva Ikuko Toguri B^ Aquino
(Deposition of Foumy Saisho.)
The Court: Objection sustained.
(A. Pro- American.)
Q. Did you know what the Kempei-tai was dur-
ing the war? A. Yes.
Q. What was it?
A. Military Police; it was greatly feared by
the people.
Q. Do you know of any Kempei-tai agents
being present at Radio Tokyo while you were there ?
A. Yes.
Q. Where were those Kempei-tai?
A. They mixed with people and came to inves-
tigate each worker — what they were doing.
Q. Do you recall a Kempei-tai agent who used
to sit near to you? A. Yes, I do.
Q. Was he there continually or constantly
watching you?
A. Not constantly. He would go away once in
a while. Almost every day he was there.
Q. Did he ever ask you about other people in
the station and what they were doing?
A. Yes.
Q. Do you know who prepared the news items
on the Zero Hour?
A. I think it was by Ince and he broadcast it
himself.
Q. Do you know whether Miss Toguri or Mrs.
D 'Aquino ever wrote any? A. I don't know.
Q. Did she ever make a statement to you that
it was impossible for Japan to win the war?
vs. United States of America 407
(Deposition of Foumy Saisho.)
A. I don't quite recall, but something to that
effect. [7]
Q. Did she ever make the statement to you that
she was working for the prisoners of war for the
purpose of aiding them and nothing else?
A. I don't recall that statement.
Q. Did you know that Mrs. D 'Aquino had access
to allied news reports and knew how the war was
progressing ?
A. Well, all Zero Hour people had, so natur-
ally she may have.
Q. Did Mrs. D 'Aquino ever tell you that she had
information on short wave broadcast?
A. No.
Q. Did she ever tell you that she hated the
Japanese militarists? A. Yes.
Q. Did you ever know Mr. Ken Oki?
A. Yes.
Q. Do you know his reputation for truth, hon-
esty and integrity in this community?
Mr. De Wolfe: I object to that as incompetent,
irrelevant and immaterial, no proper foundation
being laid and not a proper impeachment question.
The Court: Objection sustained.
(A. Not good at all.)
Q. Do you know Ken Ishii? A. Yes.
Q. Do you know his reputation for truth, hon-
esty and integrity?
Mr. De Wolfe: I object to that as being incom-
408 Iva Ikuko Toguri D' Aquino
(Deposition of Foumy Saisho.)
petent, irrelevant and immaterial, not proper im-
peachment, no foundation laid.
The Court: Objection sustained.
(A. Not good at all.)
Q. Do you know George Nakamoto?
A. Yes.
Q. What is his reputation for truth, honesty
and integrity?
Mr. DeWolfe: Objected to as being incompe-
tent, irrelevant and immaterial, not proper im-
peachment, no proper foundation laid.
The Court: Objection sustained.
(A. It wasn't particularly too good.)
A. I think that is all.
Cross-Examination
By Mr. Story:
Q. Miss Saisho, you have testified that Major
Cousens prepared the script which Miss Toguri
used on the Zero Hour program? A. Yes.
Q. Do you know of your own knowledge that
he prepared these scripts ? A. Yes, I do. [8]
Q. Did Major Cousens remain at Radio Tokyo
until the end of the war? A. No.
Q. When did he leave the radio station?
A. About June, I believe, 1944.
Q. Did Major Cousens return to the radio sta-
tion after that time?
A. I heard that he did, but I never saw him.
Q. From June, 1944, until the end of the war
vs. United States of America 409
(Deposition of Foiimy Saisho.)
you never saw Major Cousens at the radio station?
A. No.
Q. Who prepared Miss Toguri's scripts after
Major Cousens left the radio station?
A. I don't know.
Q. Miss Saisho, how many times were you actu-
ally physically present at the radio station when
the Zero Hour program was broadcast?
A. I believe only once.
Q. One time? A. Yes.
Q. Of your own knowledge do you know of any
instances where Mrs. D 'Aquino was questioned by
the Kempei-tai? A. No.
Q. Was Mrs. D 'Aquino forced in any way to
broadcast for the Radio Tokyo?
A. Not to my knowledge.
Q. Did Miss Toguri ever indicate to you that
she was proud of her success as an announcer on
the Zero Hour program? A. Yes.
Q. Was Miss Toguri a conscientious hard
worker at the radio station ? A. Yes. [9]
Q. Where was the Zero Hour beamed on the
short wave?
A. Mainly to the Pacific Islands and to Austra-
lia, I am not sure about that.
Q. AVas the Zero Hour program intended for
the American soldiers in the Southwest Pacific
Islands ? A. Yes.
Q. After Major Cousens became ill and left the
radio station, did Miss Toguri ever tell you that
410 Iva Ikuko Toguri D' Aquino
(Deposition of Foumy Saisho.)
the scripts which were being prepared for her were
terrible and not worthy of being broadcast?
A. That is right; she did.
Q. Did Miss Toguri ever tell you that the Zero
Hour program was the best program broadcast at
Radio Tokyo?
A. I have a vague recollection of it, but not
the exact words, but I have a vague recollection
that she said something like that.
Q. Did Miss Toguri consider herself the most
successful announcer at Radio Tokyo?
A. I believe so.
Q. Was Miss Toguri treated in the same man-
ner as other Japanese Nationals?
A. By Radio Tokyo?
Q. By Radio Tokyo.
A. I am not sure; I don't know. In point of
remuneration she was treated in the same Japa-
nese way.
Q. Do you mean by that that she received the
same pay as the other persons employed there?
A. Yes, the same rate.
Q. Was Miss Toguri required to work as many
hours at the Radio Station as other personnel who
received the same salary as she?
A. I don't believe so. [10]
Q. Approximately how long did Miss Toguri
remain at the broadcasting station each day?
A. Less than five hours; actually she only came
for her broadcast.
vs. United States of America 411
(Deposition of Foumy Saisho.)
Q. How many hours were you required to be
at the radio station'?
A. Minimum of eight hours. But, of course,
she made it up. It was very easy to make eight
hours when you are actually working less than
that.
Q. My question was, Miss Saisho, how many
hours each day was Miss Toguri required to be
physically present at the radio station?
Mr. Collins: I submit, if Your Honor please,
that is calling for the opinion and conclusion of
the witness, no foundation is laid.
The Court: Submitted?
Mr. DeWolfe: I think it is a proper question.
(Question read.)
The Court: You may answer.
A. The same as the rest of the staff; that is,
eight hours.
Q. Miss Toguri was required to put in eight
hours each day at the radio station?
A. I am not sure, of course, but that is my
belief.
Q. When did Miss Toguri usually arrive at the
radio station?
A. Of course, I was not always watching her
arrive, but I would see her usually in the after-
noon.
Q. What time did you usually arrive at work
each day? A. Did I?
Q. Yes.
412 Iva Ikuko Toguri D' Aquino
(Deposition of Foumy Saisho.)
A. Before noon, anyway, between ten and eleven
and stayed until seven.
Q. Did Miss Toguri arrive there in the morn-
ing between 10 and 11? A. No; very rarely.
Q. Then you are testifying that Miss Toguri
was required to spend eight hours a day at the
radio station?
A. That is the requirement for every staff mem-
ber, but I am not sure whether she was a staff em-
ployee or just attached to it. I don't know the
office arrangement in her personal case.
Q. What was your salary each month?
A. I have forgotten. It was about 120 yen and
went up to 150 yen. [11]
Q. What was Miss Toguri 's salary?
A. Of course, I don't know, but I imagine it
was about the same.
Redirect Examination
By Mr. Tamba:
Q. Miss Saisho, do you know if Miss Toguri
was absent from the radio station for any period
of time? A. Yes.
Q. How often was she absent?
A. She was quite often absent. She was absent
continually toward the end of the war.
Q. That is all.
Recross-Examination
By Mr. Story:
Q. You say she was absent continuously toward
vs. United States of America 413
(Deposition of Foumy Saisho.)
the end of the war. When did this start, how long
before the end of the war?
A. As soon as Miss Ishii took over, that was,
I don't recall the exact date, but the fall of 1944.
Q. You have testified that Miss Toguri was con-
tinuously absent from the summer of 1944, or do
you mean the summer of 1945?
A. Autumn or winter of 1944. Still I am not
prepared to say that she was continuously absent.
Q. But you worked at the radio station. Are
you in a position to know when Miss Toguri was
at the radio station and when she was not there?
A. No, there was no way of knowing exactly.
Q. Then so far as you know she could have
been there all of the time and you would not have
known about it?
A. Theoretically so, but it can't happen, be-
cause the people who came I would see.
Q. You have testified that you were only physi-
cally present in the radio studio on one occasion
during the Zero Hour program? A. Yes.
Q. That is all.
/s/ FOUMY SAISHO. [12]
Japan,
City of Tokyo,
American Consular Service — ss.
I do solemnly swear that I will truly and im-
partially take down in notes and faithfullv tran-
414 Iva Ikuko Toguri D^ Aquino
scribe the testimony of Foumy Saisho, a witness
now to be examined. So help me God.
/s/ IRENE CULLINGTON.
Subscribed and sworn to before me this twenty-
first day of April, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 598a; Tariff No. 38, No fee pre-
scribed.
Japan,
City of Tokyo,
American Consular Service — ss.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D 'Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theo-
dore Tamba, counsel for the defendant Iva Ikuko
vs. United States of America 415
Toguri D 'Aquino I examined Foumy Saisho, at my
office in Room 335, Mitsui Main Bank Building,
Tokyo, Japan, on the twenty-first day of April,
A.D. 1949, and that the said witness being to me
personally known and known to me to be the same
person named and described in the interrogatories,
being by me first sworn to testify the truth, the
whole truth, and nothing but the truth in answer to
the several interrogatories and cross-interrogatories
in the cause in which the aforesaid stipulation,
court order, and request for deposition issued, her
evidence was taken down and transcribed under my
direction by Irene Cullington, a stenographer who
was by me first duly sworn truly and impartially
to take down in notes and faithfully transcribe the
testimony of the said witness Foumy Saisho, and
after having been read over and corrected by her,
was subscribed by her in my presence; and I fur-
ther certify that I am not counsel or kin to any
of the parties to this cause or in any manner in-
terested in the result thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this fifth day
of May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 808; Tariff No. 38; No fee pre-
scribed.
[Endorsed] : Filed Aug. 24, 1949.
43 6 Iva Ikuko Toguri D' Aquino
In the Southern Division of the United States
District Court for the Northern District of
California
No. 31712 E
UNITED STATES OF AMERICA,
Plaintiff,
vs.
IVA IKUKO TOOURI D 'AQUINO,
Defendant.
DEPOSITION OP MASAAKI TANAGI
Deposition of Masaaki Yanagi, taken before me,
Thomas W. Ainsworth, Vice Consul of the United
States of America, in Mitsui Main Bank Building,
Room 335, in Tokyo, Japan, under the authority
of a certain stipulation for taking oral designations
abroad, and upon order of the United States Dis-
trict Court, made and entered March 22, 1949, in
the Matter of the United States of America vs. Iva
Ikuko Toguri D 'Aquino, pending in the Southern
Division of the United States District Court, for
the Northern District of California, and at issue
between the United States of America vs. Iva
Ikuko Toguri D 'Aquino.
The plaintiff appearing by Prank J. Hennessy,
United States District Attorney ; Thomas DeWolf e,
Special Assistant to the Attorney General, and Noel
Story, Special Assistant to the Attorney General,
and the defendant, appearing by Wayne N. Collins
and Theodore Tamba.
vs. United States of America 417
The said interrogations and answers to the wit-
ness thereto were taken stenographically by Irene
Cullington and were then transcribed by her under
my direction, and the said transcription being
thereafter read over correctly to said witness by
me and then signed by said witness in my presence.
It is Stipulated that all objections of each of
the parties hereto, including the objections to the
form of the questions propounded to the witness
and to the relevancy, materiality and competency
thereof, and the defendant's objections to the use
of the deposition, or any part of the deposition, by
plaintiff, on the plaintiff's case in chief, shall be
reserved to the time of trial in this cause.
MASAAKI YANAGI
of Tokyo, of lawful age, being by me duly sworn,
deposes and says :
Direct Examination
By Mr. Tamba:
Q. State your name in full.
A. Masaaki Yanagi.
Q. What is your present address?
A. 223 Suwa Machi Sinjuku-Ku, Tokyo.
Q. Where were you born?
A. In San Francisco, California.
Q. When? A. 11 October, 1918.
Q. When did you come to Japan?
A. In April, 1933.
Q. Have you had occasion to return to the
United States since 1933?
418 Iva Ikuko Toguri B' Aquino
(Deposition of Masaaki Yanagi.)
A. No, I never have.
Q. Were you ever in the Japanese Army?
A. Yes, from December, 1938, to May, 1942.
Q. Have you participated in a Japanese elec-
tion? A. Yes, I have. [2*]
Q. You are now a Japanese national and citizen,
is that correct? A. Yes.
Q. Were you ever connected with Radio Tokyo ?
A. Yes, from November, 1943, to September,
1945.
Q. What were your duties at Radio Tokyo ?
A. I was classified as a clerk and my duties were
as English announcer.
Q. What did you broadcast ?
A. News and commentaries and sometimes in-
troduced music.
Q. Who prepared your scripts for broadcast?
A. They were prepared by the English writing
staff and they translated the news which came from
the Japanese script section.
Q. Are you married ? A. Yes, I am.
Q. What does your family consist of?
A. My wife and one son.
Q. What were your hours of employment at
Radio Tokyo? A. The hours varied.
Q. Do you know a person named Iva Toguri,
also know as Iva D 'Aquino ? A. Yes.
Q. When and where did you meet that person?
A. When I entered Radio Tokyo, she was work-
* Page numbering appearing at bottom of page of original
Reporter's Transcript.
vs. United States of America 419
(Deposition of Masaaki Yanagi.)
ing there as an announcer on the Zero Hour staff.
Q. What was she announcing on the Zero Hour ?
A. She opened this program of the Zero Hour
and also introduced music.
Q. What kind of music did she introduce?
A. It was jazz music.
Q. Did she read from any script in her annoimic-
ing of musical records ? [3]
A. Yes, she had a script in her hands.
Q. You have seen her broadcast f
A. Yes, I have.
Q. You have heard her broadcast?
A. Yes, I have.
Q. Have you ever noticed her in and around the
radio station, coming and going from work, as-
sociating with people there?
A. No, I have not.
Q. May I put it this way. She was not par-
ticularly friendly with you, was she? A. No.
Q. Was she particularly friendly with Japanese
people around the station? A. No.
Q. Was she particularly friendly with the pris-
oners, do you know? A. I don't know.
Q. Can you describe what kind of an announcing
voice that Miss Toguri had?
A. One comment around the radio station when
'^ Tokyo Rose" came out was that Tokyo Rose had
a sweet voice, but I did not think she had a sweet
voice.
Q. What kind of voice did she have?
420 Iva Ikuko Toguri D' Aquino
(Deposition of Masaaki Yanagi.)
A. When I met her in the halls and said '^ hello"
and when she answered, her voice sounded more
masculine to me.
Q. How did her voice sound over the radio ; did
it have a musical sound?
A. Compared to the other girls' voices, her voice
sounded masculine.
Q. Were there other women announcers around
the radio station? A. Yes.
Q. Who were they?
A. They were Miss Suyama, Miss Hayakawa,
Miss Murooka, and [4] Miss Mary Ishii, and for
a short time, Miss Furuya, or the present Mrs. Oki.
Q. Was there a gril named Matsunaga?
A. Yes, there was a girl by that name, but she
was not on the regular Radio Tokyo staff, but was
on the German Hour.
Q. Was there a girl there by the name of
Furuya ? A. Yes. She was an announcer.
Q. What did Miss Suyama broadcast?
A. She broadcast news commentaries, introduced
music and she had the children's hour.
Q. What did Miss Hayakawa do?
A. She did the same, except for the children's
hour.
Q. What did Mrs. D 'Aquino do?
A. She was on the Zero Hour.
Q. What did she broadcast?
A. She opened the program and introduced
music.
vs. United States of America 421
(Deposition of Masaaki Yanagi.)
Q. Is that all she did?
A. Yes, that is all I remember.
Q. What did Miss Murooka do?
A. She was there for only one year and she was
announcing news and commentaries and also intro-
ducing music.
Q. What did Miss Furuya do ?
A. She was helping Mrs. D 'Aquino on the Zero
Hour. I recall that she was there for a short period.
Q. What did Mary Ishii do?
A. Toward the end of the war, Miss Ishii was
helping Miss Toguri on the Zero Hour.
Q. What did Miss Furuya do?
A. She was anouncing news commentaries and
introducing music and also on the '^Women's
Hour."
Q. Do you know Mr. Ken Oki? A. Yes.
Q. What did he do?
A. He was on the staff of the Zero Hour.
Q. Do you know if he ever wrote script or
broadcast news or commentaries?
A. While I was there I never saw him broad-
casting but I heard he had broadcasted before I
entered Radio Tokyo.
Q. Do you know if he wrote script?
A. I have seen him collect news and also type-
writing, so I presume he was preparing script.
Q. Have you ever seen him in charge of prison-
ers of war? A. No, I have not.
Q. Do you know Nakamoto?
422 Iva Ikuko Toguri D' Aquino
(Deposition of Masaaki Yanagi.)
A. Yes, I do.
Q. What did he do?
A. He was section chief on the ^^Zero Hour."
Q. Do you know whether or not he wrote script ?
A. I saw him typing, but I do not know whether
he was preparing script or not.
Q. Do you know Major Cousens?
A. Yes, I do.
Q. Who was he?
A. He was a prisoner of war at Radio Tokyo.
Q. What did he do at Radio Tokyo?
A. He was training the English announcers.
Q. Did you ever see him train any English an-
nouncer? A. No, I have not.
Q. Do you know a man named Ken Tshii?
A. Yes.
Q. Where did you meet him?
A. I entered Radio Tokyo the same time that
he did.
Q. Was he at Radio Tokyo continuously from
the time you entered until the end of the war? [6]
A. No.
Q. Where was he?
A. I think he was called to the Japanese Army ;
I don't know the exact date, but I think for a pe-
riod of about one year.
Q. Do you know Captain Ince? A. Yes.
Q. Who was he?
A. He was also a prisoner of war.
Q. What did he do at Radio Tokyo?
vs. United States of America 423
(Deposition of Masaaki Yanagi. )
A. I don't know exactly.
Q. What did Ishii do?
A. He was an English announcer, also, and he
broadcast commentaries and introduced music.
Q. Do you know what the Kempei-tai organiza-
tion is? A. Yes.
Q. Did they wear uniforms in and around Radio
Tokyo?
A. I heard they were there, but I never saw
them personally.
Q. They never bother you, did they?
A. No.
Q. For what reason?
Mr. De Wolfe: I object to that as incompetent,
calling for the conclusion, hearsay.
The Court: What reason they did not bother
her?
Mr. Collins: Yes.
The Court: Objection sustained.
(A. I was also in the Japanese Army and I had
good knowledge of Japanese and I think that was
the main reason why I wasn't bothered by the
Kempei-tai.)
Q. Do you know of an occasion when the
Kempei-tai arrested certain people who were con-
nected with Radio Tokyo ? A. Yes, I do.
Q. Who were they?
A. Bucky Harris ; another Mr. Miyata and Miss
Hayakawa. I don't know whether she was ar-
rested or not, but she was being looked for.
424 Iva Ikuko Toguri D' Aquino
(Deposition of Masaaki Yanagi.)
Q. As a matter of fact, you forewarned her, is
that correct? [7]
A. Yes; the Section Chief warned her it was
advisable to leave for the country because the
Kempei-tai were looking for her, and I also warned
her that it was advisable for her to leave for the
country.
Q. Why was Miyata arrested by the Kempei-tai,
if you know %
A. Mr. Miyata was called by the Kempei-tai be-
cause he had a New Year's party at his home and
at this party some of the persons danced there.
Q. What kind of dancing was that?
A. It was American style dancing.
Q. Incidentally were the people in Japan dur-
ing the war permitted to speak English on the
street?
A. I don't know of any law prohibiting it, but
I have knowledge of occasions where people were
called by the Kempei-tai or questioned by them be-
cause they spoke English on the street or trains.
Q. Was the American game of baseball per-
mitted in Japan during the war?
A. No, that was also stopped by the Japanese
Government.
Q. Do you know whether or not the Nisei had a
hard time in Japan during the war?
Mr. De Wolfe: Just a moment, Mr. Tamba.
Object to that as calling for a conclusion, too specu-
lative, conjectural, incompetent.
vs. United States of America 425
(Deposition of Masaaki Yanagi.)
Mr. Collins: I think that this matter goes to
one of the very issues involved in this ease.
Mr. De Wolfe : What is a hard time, sir ?
Mr. Collins: Well, following the next question
it is directly related to that. Following that is the
answer, as to whether they did or did not have a
hard time, I mean, we have no objection to that
being stricken out.
The Court: Let it go out.
(A. Yes, they did have a hard time.)
Q. In what way. Will you describe some of the
difficulties?
Mr. De Wolfe: Object to that as incompetent,
calling for a conclusion and
Mr. Collins: Well
Mr. De Wolfe: And I think the answer itself
discloses at least in part that it is based on hearsay
and conclusions, speculative; conjectural.
Mr. Collins: Well, it would be a matter within
the personal knowledge of the witness.
The Court: Read the question and answer, and
I will instruct the jury if it should not go in.
Mr. Collins: The question was, ^^Do you know
whether or not the Nisei had a hard time in Japan
during the war?" ^^ Answer. Yes, they did have
a hard time," and then the question: ^*In what
way? Will you describe some of the difficulties?"
and answer, '^The main reason was, they ordered
them to be naturalized as Japanese and that was
because they wanted to call them for the army, and
426 Iva Ikuko Toguri D^ Aquino
(Deposition of Masaaki Yanagi.)
there were cases where some of the men after they
became Japanese citizns were called to the army."
Mr. De Wolfe: Move that be stricken on the
ground it is hearsay and calls for a conclusion;
speculative and conjectural.
Mr. Collins: It is a matter within the personal
knowledge of the witness as to the existing condi-
tions.
Mr. De Wolfe: It does not say it was; some of
it must have come from hearsay, what somebody
else thought, the reason for something else.
The Court: The Court is prepared to rule now.
The objection will be sustained; let it go out and
let the jury disregard it.
(A. The main reason was that they wanted them
to be naturalized as Japanese and that was because
they wanted to call them for the army and there
were cases where some of the men after they be-
came Japanese citizens were called to the army.)
Q. Were the Nisei compelled to register?
A. They were requested to register.
Q. Do you know why Bucky Harris was appre-
hended by the Kempei-tai ?
A. I don't know exactly, but I heard talk
about it. [8]
Cross-Examination
By Mr. Story :
Q. How many women regularly participated in
the Zero Hour %
A. Regularly just Miss Toguri.
vs. United States of America 427
(Deposition of Masaaki Yanagi.)
Q. The other people you mentioned as being on
the Zero Hour program were substituting for Miss
Toguri ?
A. Yes. Mary Ishii and Miss Furuya were with
Miss Toguri for a short period of time. They were
not regularly there, but they were there at the same
time.
Q. What were they doing there while Miss
To2ruri was there? A. I don't exactly know.
Q. They weren't participating in the program?
A. No, I don't think so.
Q. How many times did you actually observe the
Zero Hour program when it was being broadcast
in the studio ?
A. Three or four times and that w^as in the
monitor's room.
Q. You mention this party where they were
dancing on New Year's Eve and as a result one of
the persons there was arrested by the Kempei-tai;
is that correct?
A. It was not on New Year's Eve, but it was
at New Year's time, and it was not during the party
but a few days later that he was called by the
Kempei-tai.
Q. Was Miss Toguri at this party?
A. No, she wasn't.
Q. What name did Miss Toguri use when she
was broadcasting on the Zero Hour program?
A. '^Orphan Ann."
Q. Did Miss Toguri ever use the name *^Ann"
428 Iva Ikuko Toguri D* Aquino
(Deposition of Masaaki Yanagi.)
to your knowledge in addition to ^^ Orphan Ann"?
A. I only remember '^ Orphan Ann.''
Q. In these broadcasts when you observed Miss
Toguri broadcast, did you ever hear her refer to
the American soldiers as ''Orphans of the Pa-
cific"?
Mr. Collins: I submit, if Your Honor please,
that is calling for the opinion and conclusion of the
witness. The testimony was that she did not ob-
serve the broadcast. The testimony of the witness
was that she did not observe any broadcasts.
The Court : She was there.
Mr. Collins: No foundation has been laid. She
had
The Court: The testimony, as I followed it
Mr. De Wolfe : Right up above, sir.
The Court: She was in the monitor's room.
Mr. De Wolfe: Yes. Right above, ''How many
times did you actually observe the Zero Hour pro-
gram when it was being broadcast in the studio ?''
* 'Answer: Three or four times and that was in the
monitor's room.
Mr, Collins: I. may be in error, the monitor's
room might be in the adjoining room. I withdraw
my objection.
The Court: Proceed, gentlemen. [9]
A. Yes.
Q. Was it generally known at the radio station
that Miss Toguri 's part in the Zero Hour program
vs. United States of America 429
(Deposition of Masaaki Yanagi.)
was for the purpose of attracting listeners among
the soldiers in the Southwest Pacific?
A. Yes, I think the reason they had a girl an-
nouncer there was to attract attention of the
listeners.
Mr. Tamba: It was also true that the purpose
of having other girl announcers was to attract at-
tention, is that correct?
A. Yes.
/s/ MASAAKI YANAGI. [10]
Japan,
City of Tokyo,
American Consular Service — ss.
I do solemnly swear that I will truly and im-
partially take down in notes and faithfully tran-
scribe the testimony of Masaaki Yanagi, a witness
now to be examined. So help me God.
/s/ IRENE CULLINGTON.
Subscribed and sworn to before me this twenty-
first day of April, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 599a; Tariff No. 38; No fee pre-
scribed.
430 Iva Ikuko Toguri B' Aquino
Japan,
City of Tokyo,
American Consular Service — ss.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
]949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District
of California, and at issue between United States
of America vs. Iva Ikuko Toguri D 'Aquino, do
hereby certify that in pursuance of the aforesaid
stipulation and court order and at the request of
Theodore Tamba, counsel for the defendant Iva
Ikuko Toguri D 'Aquino, I examined Masaaki
Yanagi, at my office in Room 335, Mitsui Main Bank
Building, Tokyo, Japan, on the twenty-first day of
April, A.D. 1949, and that the said witness being
to me personally known and known to me to be the
same person named and described in the interroga-
tories, being by me first sworn to testify the truth,
the whole truth, and nothing but the truth in an-
swer to the several interrogatories and cross-inter-
rogatories in the cause in which the aforesaid stipu-
lation, court order, and request for deposition
issued, his evidence was taken down and transcribed
vs. United States of America 431
under my direction by Irene Cullington, a stenogra-
pher, who was by me first duly sworn truly and
impartially to take down in notes and faithfully
transcribe the testimony of the said witness Masaaki
Yanagi, and after having been read over and cor-
rected by him, was subscribed by him in my pres-
ence; and I further certify that I am not counsel
or kin to any of the parties to this cause or in any
manner interested in the result thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this fifth day of
May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 810 ; Tariff No. 38 ; No fee prescribed.
[Endorsed] : Filed Aug. 24, 1949.
432 Iva Ikuko Toguri D' Aquino
In the Southern Division of the United States
District Court for the Northern District of
California
No. 31712 R
UNITED STATES OF AMERICA,
Plaintiff,
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OF GEORGE OZASA
Deposition of George Ozasa, taken before me,
Thomas W. Ainsworth, Vice Consul of the United
States of America, in Mitsui Main Bank Building,
Room 335, in Tokyo, Japan, under the authority of
a certain stipulation for taking oral designations
abroad, and upon order of the United States Dis-
trict Court, made and entered March 22, 1949, in
the Matter of the United States of America vs. Iva
Ikuko Toguri D 'Aquino, pending in the Southern
Division of the United States District Court, for
the Northern District of California, and at issue be-
tween the United States of America vs. Iva Ikuko
Toguri D 'Aquino.
The plaintiff appearing by Frank J. Hennessy,
United States District Attorney ; Thomas DeWolf e.
Special Assistant to the Attorney General, and Noel
Story, Special Assistant to the Attorney General,
and the defendant, appearing by Wayne N. Collins
and Theodore Tamba.
vs. United States of America 433
The said interrogatories and answers of the wit-
ness thereto were taken stenographically by Irene
Cullington and were then transcribed by her under
my direction, and the said transcription being there-
after read over correctly to said witness by me
and then signed by said witness in my presence.
It is Stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objections to the use of the
deposition, or any part of the deposition, by plain-
tiff, on the plaintiff's case in chief, shall be reserved
to the time of trial in this cause.
GEORGE OZASA
of Tokyo, employed by Broadcasting Corporation
of Japan, of lawful age, being by me duly sworn,
deposes and says :
Direct Examination
By Mr. Tamba:
Q. What is your full name?
A. George Ozasa.
Q. Where do you reside?
A. Tokyo Ota Ku Magome Higashi 4-33.
Q. What is your present occupation or business?
A. I am now w^orking for Broadcasting Cor-
poration of Japan in the Planning Department,
Music Section.
Q. Where were you born?
434 Iva Ikuko Toguri D' Aquino
(Deposition of George Ozasa.)
A. Salt Lake City.
Q. When were you born?
A. June 23, 1919.
Q. Did you receive any formal education in the
United States?
A. I had my primary and high school education
in Salt Lake City and Los Angeles.
Q. Did you attend any university in the United
States?
A. Yes, for year at University of Penn. [2*]
Q. When did you come to Japan?
A. I first came in 1934, after I graduated from
High School.
Q. Did you return to the States after that?
A. Yes, in 1939.
Q. I assume after returning to the United
States, you returned to Japan again ?
A. Yes, in 1940.
Q. You are now a citizen and national of the
empire of Japan? A. Yes.
Q. When and under what circumstances did you
change your citizenship?
A. I changed my citizenship in the early part of
1942, because it was impossible at that time to secure
any job and I had no choice but to become a Jap-
anese citizen at that time if I wanted to earn my
living in Japan. I entered the Overseas Depart-
ment of Radio Tokyo in 1942.
Q. In other words, it was impossible for you
* Page numbering appearing at bottom of page of original
Reporter's Transcript.
vs. United States of America 435
(Deposition of George Ozasa.)
to live here unless you became a Japanese Na-
tional ? A. Yes.
Q. Were the American citizens of Japanese an-
cestry having a difficult time in Japan during the
war securing employment *?
Mr. De Wolfe : I object to that as immaterial and
too remote.
The Court: The objection is sustained.
Mr. Collins: I might direct Your Honor's at-
tention to the fact that in connection with that
objection, the answer relates directly to the de-
fendant's procurement of employment at Radio
Tokyo as one of the Nisei in Japan.
The Court : The Court has ruled. You may pro-
ceed.
(A. When the war broke out we were all more
or less asked to concentrate in one place and those
w^ho had a special talent, such as writing, they were
more or less assigned to various jobs and as I had
taken up journalism at school, they asked me to
work for Radio Tokyo. However, to work for Radio
Tokyo one had to give up his American citizenship
and become a Japanese subject.)
Q. Do you know^ what the organization called
the Kempei-tai was?
A. Yes, it was sort of military police, but its
job was much larger than that and they had prac-
tical supervision over all civilians and over the
daily lives of people in Japan [3] during the war
period.
436 Iva Ikuko Toguri D' Aquino
(Deposition of George Ozasa.)
Q. Do you know of any Kempei-tai being around
Radio Tokyo?
A. Yes, quite a few at all times at Radio Tokyo
and another thing, there were many people who
were assigned by the Kempei-tai to become part
time employees of Radio Tokyo, but they were
actually on the Kempei-tai payroll but in name they
were employees of Radio Tokyo.
Q. Do you know a person by the name of Iva
Toguri, also known as Iva D 'Aquino?
A. Yes, she was a part time employee of Radio
Tokyo and she used to announced for the program
known as the ^'Zero Hour."
Q. Do you recall an occasion when the Zero
Hour program was interrupted by a flash new^s
bulletin announcing the fall of Saipan?
A. Yes.
Q. What happened after that flash news was
announced %
A. The flash news came in about five minutes
before the end of the broadcast and after that the
record ^' Stars and Stripes" was played and be-
cause of that the Kempei-tai had us all up for
questioning and we were questioned as to why that
certain record was played at that time. Another
thing, the Kempei-tai actually thought we had
played the ^^Star Spangled Banner" after this news
flash on the fall of Saipan, but we proved to the
Kempei-tai that the record played was ^^ Stars and
Stripes" and not the ^^Star Spangled Banner" be-
vs. United States of America 437
(Deposition of George Ozasa.)
cause we did not have that record in the library at
that time. This playing of the '^ Stars and Stripes"
became quite a big problem and I was called by the
Kempei-tai three or four times.
Q. Were you detained by the Kempei-tai for
that?
A. I was called up on three different occasions
and they asked me various questions as to why we
had played such and such a record at that time and
who was responsible, and at that [4] time Mr. Reyes
and Miss Toguri was called before the Kempei-tai
and questioned concerning this program.
Q. Who was in the radio broadcasting room
when that record was played?
A. Mr. Reyes and Miss Toguri.
Q. Where were you?
A. In the control room.
Q. Was anyone else in the control room ?
A. The engineer was.
Q. Was any other member of the cast of the
Zero Hour present at that time?
A. No; on that day the Zero Hour was having
a party and the only two people in the studio at
that time were Reyes and Miss Toguri.
Q. No other member of the Zero Hour program
was there ? A. No.
Q. Were persons unconnected with the Zero
Hour program ever allowed in the broadcasting
room?
A. No, that was strictly prohibited.
438 Iva Ikuko Toguri D' Aquino
(Deposition of George Ozasa.)
Q. You say, no one else was allowed?
A. No. Only employees directly connected with
the Zero Hour program were allowed. I used to
pinch hit for studio people.
Q. What kind of a program was the Zero Hour
program, if you recall?
A. It was an hour program — sort of a variety
type of program, which used to feature classical
music, sweet jazz music and hot swing music with
commentaries and news items sandwiched in be-
tween
Q. Was that program one that couJd be enjoyed
by anyone who did not have a good knowledge of
English?
A. This program used to carry quite a bit of
slang and was [5] a fast moving program and for
an ordinary Japanese National or person who knew
little English, it would have been impossible for
that person to pick up and understand that pro-
gram.
Q. Do you know whether or not Miss Toguri was
particularly friendly with the Japanese people
around Radio Tokyo?
A. She was employed in the capacity of part
time employee at Radio Tokyo. She used to come
in for Zero Hour and go out at the end of it and
very few people knew her or had speaking acquaint-
ance with her outside the people directly connected
with the Zero Hour, and even people on the Zero
Hour knew very little about her, because she used
vs. United States of America 439
(Deposition of George Ozasa.)
to come in for her broadcast and as soon as it was
over, she would leave.
Q. Did you ever have occasion to notice her
associating with prisoners of war?
A. She used to work directly with the Aus-
tralian, Mr. Cousens, and Mr. Ince and Mr. Reyes,
who were directly connected as script writers with
the Zero Hour.
Q. Would it be a fair statement to say that she
appeared to be very friendly to prisoners of war?
A. Yes, I would say more friendly than to Jap-
anese Nationals.
Q. Who else was on the Zero Hour program
besides Miss Toguri and Mr. Reyes.
A. Mr. Mitsushio, head of the Zero Hour
Department, and Mr. Oki and Mr. Moriyama, and
then there were Ken Ishii and Miss Ishii and Miss
Furuya. They were the people outside of the two
or three directly connected with the Zero Hour.
The Zero Hour w^as an entire staff by itself com-
posed of about ten to twelve people and they worked
entirely apart from the rest of Radio Tokyo.
Q. How^ many women were on that hour ? [6]
A. Altogether there were four women connected
with this program. One, Miss Hayakawa, who was
connected with the program during its initial stages,
used to pinch hit for Iva Toguri when Iva was out
in the early part of 1944.
Q. Do you know what became of the records of
employment of Radio Tokyo?
440 Iva Ikuko Toguri D' Aquino
(Deposition of George Ozasa.)
A. All records written and recorded of Radio
Tokyo were destroyed at the termination of the war
by orders of the Army Department.
Q. Do you know what became of the records of
employment of Radio Tokyo?
A. They were burned or destroyed. We were
specifically ordered to burn any records or scripts
that we might have at home.
Q. Was a record made of the Zero Hour broad-
cast?
A. No record was ever made of the Zero Hour.
Q. Can you tell us when the severe bombing
occurred in this area ?
A. The bombing started in March, 1945.
Q. What happened to the Zero Hour at that
time?
A. It used to go on but with a very reduced
staff and Iva was very seldom present.
Q. Do you know whether or not she was absent
from her employment during any period of time?
A. After the heavy bombing started she was ab-
sent for quite a while and in the early part of 1944
she was absent for quite a period of time and about
two or three weeks before the war ended she had
already quit Radio Tokyo. She was a part time
employee and I do not think they have any definite
record of her being employed as a member of Radio
Tokyo, so whether or not they required a resigna-
tion, I am not sure. Regular members were not
allowed to resign.
vs. United States of America 441
(Deposition of George Ozasa.)
Q. Was this program of Zero Hour censored?
A. Yes, it was censored by four different depart-
ments— the Army Department; the Navy Depart-
ment; the Department of Communications; and the
Board of Information.
Q. Will you tell us what Miss Toguri did?
A. She used to announce parts that had to do
with swing music on the Zero Hour.
Q. Did she announce this by scripts?
A. Scripts that were prepared for her by Mr.
Cousens or Mr. Ince.
Q. Do you know if Iva Toguri ever prepared
any of her own scripts ?
A. I personally have never seen her prepare her
script. I have seen her many times go over script
that Mr. Cousens wrote.
Q. Did any other women besides Miss Toguri
broadcast introductions ?
A. Miss Ishii and Miss Furuya. Miss Ishii used
to broadcast the classic type of music and Miss
Furuya broadcast sweet music.
Q. Is Miss Furuya now Mrs. Oki?
A. Yes.
Q. Do you remember the theme song of Zero
Hour? A. ^^ Strike up the Band."
Q. Do you know a person by the name of Ruth
Hayakawa?
A. She was a regular employee of Radio Tokyo.
She was an announcer.
Q. Did she take part in the Zero Hour?
442 Iva Ikuko Toguri D' Aquino
(Deposition of George Ozasa.)
A. In 1944 when Miss Toguri was out, Euth used
to pinch hit for her for several weeks.
Q. Do you know anything about a program called
the ''German Hour''?
A. Yes, it was a program edited and put on by
the German Embassy, prepared for use by Japanese
announcers.
Q. What hour of the day did that program
go on? [8]
A. On the European network it went on at one
time from 1:00, to 1:30.
Q. Was the time ever changed?
A. I believe at one time it was changed to six
in the evening.
Q. Were any women on that program?
A. Yes, Miss Matsunaga.
Q. Will you describe her?
A. She was rather round faced and at times she
wore pigtails and her appearance was very similar to
Miss Toguri 's. Her voice resembled Miss Toguri 's
in the way that she used to use quite a bit of Ameri-
can slang on the program and her voice registered
on the air rather husky and corny, the way Miss
Toguri 's used to register. I would say much of her
scripts resembled Zero Hour scripts very much.
She used to use records which were brought to the
station by the German Embassy, that is, the jazz
records.
Q. Was the German Hour program broadcast
in English? A. Yes.
vs. United States of America 443
(Deposition of George Ozasa.)
Q. Have you ever heard of a person by the name
of ^^Brimdage''?
A. Yes, he is a newspaper reporter, although I
never met him personally, but I have heard his name.
Q. Mr. Ozasa, I invite your attention to a state-
ment made by Mr. Brundage to certain parties,
whom I do not wish to name at this time, in sub-
stance, as follows: ^'Miss Toguri took over the
writing of her own script. Wallace Ince and the
Australian had been doing them. They continued
on the program as announcers, advisors, etc., but
I announced and played the music and I did the
propaganda job, too. Some of the propaganda was
pretty tough. You can go all out and say it was
pretty dirty. I only not made reference about what
wives and sweethearts of American troops were
doing at home while they were giving their blood
and sweat in the mud, heat and rain, and I made
flat statements about their alleged misconduct." I
will ask you if that statement is true or false'?
Mr. De Wolfe: Objected to as not proper im-
peachment. Brundage was not called by either
party. It is incompetent, irrelevant and immaterial.
The Court: Objection sustained.
(A. I would call that statement false on two
])oints. One point, her scripts were written by Mr.
Cousens and Mr. Ince and she never wrote any of
her scripts herself, and another point on that is
that compared to some of the news items and com-
ments that used to go over the radio at that time.
444 Iva Ikuko Toguri B' Aquino
(Deposition of George Ozasa.)
the Zero Hour was kept pretty clean. The contents
of the Zero Hour was kept very clean compared to
some news items and commentaries that were used
during that period.)
Q. Were any so-called dirty statements or prop-
aganda made over the broadcast from Radio Tokyo ?
Mr. De Wolfe: I object to that question as being
too general and also involved in the same matter as
the last question to which objection was sustained.
It is not proper impeachment.
The Court : The objection will be overruled. He
may answer.
A. In the matter of news items and commen-
taries, quite a few were, but the Zero Hour was
aimed principally at the GI's and in order to stim-
ulate interest in that program, the program was
kept on a pretty clean level. That I can say because
I went through many scripts myself and I seldom
saw any statements that could be termed as dirty.
Q. Mr. Brundage also made another statement
in which he said that Miss Toguri stated to him that
she was the only woman to ever broadcast over the
Zero Hour program. Is that statement true or false ?
Mr. De Wolfe: I object to that as incompetent,
irrelevant and immaterial and without foundation.
The Court: The objection will be sustained.
(A. That statement is false because, as I men-
tioned before, there were three other girls connected
with the Zero Hour. Each girl had a definite part
on the Zero Hour. I might add that each person
vs. United States of America 445
(Deposition of George Ozasa.)
on the Zero Hour program had a definite part ; one
person acted as master of ceremonies, usually Mr.
Oki and Moriyama, and another person who just
read news, usually Mr. Oki, and there was another
person who read commentaries, usually Mr.
Mitsushio. [10] At times they used to have short
skits and each girl had a definite part. Miss Ishii
played ten minutes classical music; Miss Furuya
played ten minutes of sweet music and Miss Toguri
played ten to fifteen minutes of swing music.)
Q. Did Miss Toguri use any name in announcing ?
A. She often used the name of ^^ Orphan Ann."
This name was given to her by Mr. Cousens. When
this program started they wanted to know what
name to go by and Mr. Cousens thought that Ami
was short for announcer and they took that name.
Q. Mr. Ozasa, you have talked to Mr. Tillman of
the FBI about this case? A. Yes, I have.
Q. That was before you talked to me the other
night and this morning, is that correct?
A. Yes.
Q. That is all.
Cross Examination
By Mr. Story:
Q. Mr. Ozasa, you have testified that you
changed your citizenship from American to Japa-
nese in 1942, is that correct?
A. After the war started.
446 Iva Ikuko Toguri D' Aquino
(Deposition of George Ozasa.)
Q. Approximately when in 1942 did you change
your citizenship? A. Early in 1942.
Q. What were you doing prior to the time you
changed citizenship?
A. I was attending college in Japan — College
of Foreign Languages.
Q. You stated that in order to work at Radio
Tokyo one had to have Japanese citizenship, is that
correct %
Mr. De Wolfe: I ask that this question and an-
swer go out because the corresponding matter on
direct examination went out. The next two ques-
tions should go out with the answers because they
went out on direct examination.
The Court: Is there any objection?
Mr. Collins: Yes, there is objection to that, if
Your Honor please, because the question is pro-
pounded here '^You said that in order to work at
Radio Tokyo one had to have Japanese citizenship?"
It is still pertinent to the issue.
Mr. De Wolfe: The identical matter went out
on direct examination.
Mr. Collins: I think that it is because of the
method in which the question had been propounded.
Mr. De Wolfe : The testimony went out on direct
examination.
The Court : You must get a record. I must rule.
Mr. De Wolfe: On page 3 of this deposition,
lines 26 to 28, that identical point went out on our
objection.
vs. United States of America 447
(Deposition of George Ozasa.)
Mr. Collins: That is the only place it was testi-
fied to on direct, and that is what prompted this
cross-examination. The question is propounded, if
Your Honor please, on the direct examination on
page 3: ^^Were the American citizens of Japanese
ancestry having a difficult time during the war se-
curing employment?" You sustained an objection,
but the present question is propounded on the cross-
examination as follows: ^^You stated that in order
to work at Radio Tokyo one had to have Japanese
citizenship. Is that correct?"
Mr. De Wolfe : Yes, but his answer to the ques-
tion which counsel propounded on direct examina-
tion, the last three lines of it, dealt with this subject,
work at Radio Tokyo and American citizenship, but
whether or not American citizenship was an obstacle
to working at Radio Tokyo that question and answer
were stricken, and therefore this cross-examination
on that identical point is not proper.
The Court : You will have to proceed with ques-
tion and answer and I will rule.
Mr. Tamba: Which one, Mr. De Wolfe?
Mr. De Wolfe : Page 11, line 26 ;
''Q. You state that in order to work at Radio
Tokyo one had to have Japanese citizenship, is that
correct?"
Mr. De Wolfe : I move that that be stricken. We
object to it on the ground that the objection to the
identical matter was sustained on direct examination.
The Court: Submitted?
448 Iva Ikuko Toguri D' Aquino
(Deposition of George Ozasa.)
Mr. Collins: Yes, Your Honor.
The Court: Objection is sustained.
Mr. De Wolfe : The next question, ^^Is that state-
ment true I" The same objection for the same rea-
son.
The Court: Same ruling. The objection will be
sustained.
(A. Yes.)
Q. Is that statement true? (A. Yes.)
Q. There were no foreign nationals working at
Eadio Tokyo? [11]
A. Not of Japanese blood.
Q. You are telling us that if you were of Japa-
nese blood you could not work at Radio Tokyo with-
out being a Japanese National?
A. Yes, as a full time employee. There were
quite a few foreigners working for Eadio Tokyo all
employed as part time employees. There was a
definite difference between full time and part time
employees.
Q. Could a part time employee of Japanese
blood but of other citizenship be employed at Radio
Tokyo?
A. So far as I know, no. In the case of Miss
Toguri, she was not employed by Radio Tokyo ; she
was forced by the Army Department to work for
Radio Tokyo; they forced her upon Radio Tokyo.
Q. Are you testifying as to something you know
of your own knowledge or as to something you have
heard or presume?
vs. United States of America 449
(Deposition of George Ozasa.)
Mr. Tamba: You mean in reference to Miss
Toguri %
Mr. Story: Yes.
Q. Mr. Ozasa, do you know the meaning of an
oath^ A. Yes.
Q. Do you know you are subject to punishment
for not telling the truth? A. Yes.
Q. We only want you to testify as to what you
know of your own knowledge; not what you have
heard from someone else. Now, of your own knowl-
edge, do you know that a part time employee of
Radio Tokyo of Japanese blood had to be a Japanese
citizen in order to work for the radio station?
A. Yes, I do.
Q. You personally know that each and every per-
son of Japanese blood that worked, either part time
or full time for Radio Tokyo was a Japanese
National? [12]
A. Yes.
Q. Mr. Ozasa, you have testified that there were
all kinds of Kempei-tai at Radio Tokyo, is that
correct ?
A. What I meant was that people who were not
actually Kempei-tai but were employed by the
Kempei-tai to give information on what was going
on at Radio Tokyo.
Q. Is that what you testify to ? A. Yes.
Q. Name some of these people who belonged to
the Kempei-tai at the radio station.
A. Mr. Uno was connected with the Kempei-tai.
450 Iva Ikuko Toguri D^ Aquino
(Deposition of George Ozasa.)
Q. Do you know of your own knowledge that
he was employed and paid by the Kempei-tai f
A. Yes, I do.
Q. Do you know the names of any other Kempei-
tai at the radio station %
A. I can't give you definite names.
Q. Then you don't know anybody connected with
the Kempei-tai but Mr. Uno, is that correct?
A. Yes. After the bombings started there were
Kempei-tai who made periodical appearances at
Radio Tokyo and I, myself, was checked several
times by members of the Kempei-tai. I definitely
cannot report the names of the fellows. That we
were watched I definitely know, because my personal
things in the place where I used to live during the
war was searched several times.
Q. You have testified that after the fall of Sai-
pan the ^^ Stars and Stripes" was played on the
Zero Hour?
A. Yes. The Zero Hour was an hour program
and just before the end of the Zero Hour program
the flash news on the fall of Saipan came in and
the record that played was the ''Fair of the Fair-
est" and it was turned over and the ''Stars and
Stripes" [13] played until the end of the program,
which was at seven o'clock. That record "Stars
and Stripes" which was played was on the other
side of "Fair of the Fairest" and the Kempei-tai
thought that w^e had played the "Star Spangled
Banner," and I proved to them that we did not play
vs. United States of America 451
(Deposition of George Ozasa.)
the '^ Star Spangled Banner" because we did not
have the record.
Q. Did Miss Toguri have anything to do with
the playing of this record?
A. She was in the studio with Mr. Reyes.
Q. Tell us what was done.
A. Mr. Reyes was at the turn table and he turned
it over and since she was in the studio with Mr.
Reyes I do not see that she had a definite part in
the thing.
Q. Who actually physically played the record-
ing? A. Mr. Reyes.
Q. You have testified that Miss Toguri was ques-
tioned by the Kempei-tai after this incident. Were
you personally present when she was interviewed?
A. No.
Q. Then of your own knowledge you do not
whether or not she was questioned by the Kempei-
tai?
A. Everybody -concerned with the program was
questioned. We were all called in — one at a time.
Q. Were you present when she was questioned
by the Kempei-tai? A. No.
Q. You have testified that Miss Toguri was
friendly with the prisoners of war at the radio sta-
tion and not necessarily friendly with the Japanese
Nationals, is that correct? A. Yes.
Q. What were these prisoners of war doing at
the radio station?
A. Mr. Cousens used to write commentaries and
452 Iva Ikuko Toguri B' Aquino
(Deposition of George Ozasa.)
acted as coach for news writers and announcers and
Mr. Ince acted in the same [14] capacity.
Q. Were these prisoners of war w^riting scripts
for Radio Tokyo? A. Yes.
Q. Were some of these prisoners of war broad-
casting propaganda for the Japanese radio ?
A. They had this program, which was called
Hi no Maru Hour, which was put on by the Army
Department and it was a half hour broadcast every
day.
Q. Were the prisoners of war broadcasting?
A. Yes.
Q. Mr. Ozasa, you have testified that Miss Toguri
was away from the radio station in 1944?
A. In the early part of 1944.
Q. How long was she away from the radio
station ?
A. I cannot definitely say, but I would say about
a month. That was when Euth Hayakawa was pinch
hitting for her.
Q. You have testified that Miss Toguri was away
from the radio station in 1945, when was that ?
A. Toward the end of the war — about three
weeks before the end of the war and from then she
did not come at all to the radio station and she
was on and off quite frequently in 1945.
Q. Is that the only time she was away from the
radio station in 1945 for an extended period of time ?
A. As far as I know. I, myself, very seldom
went to the Zero Hour rooms and there were times
vs. United States of America 453
(Deposition of George Ozasa.)
when I was busy with my own work and she may
have been absent but it did not come to my knowl-
edge.
Q. How many times a week was the Zero Hour
broadcast? A. Every day of the week.
Q. Tell me approximately how many times you
were actually at the Zero Hour and observed the
broadcast of the Zero Hour. [15]
A. At the beginning of the Zero Hour program
I was there practically every day; roughly, about
15 or 16 days when I saw the whole program.
Q. You have testified that four different women
had participated in the Zero Hour broadcast. Were
these persons substituting for Miss Toguri, or did
they have a regular portion of the Zero Hour joro-
gram daily?
A. Miss Hayakawa was substituting for Miss
IToguri, but the other two had a regular part in the
Zero Hour program.
Q. In other words, they appeared every day in
the program? A. Yes.
Q. What were the names of these persons?
A. Miss Ishii and Miss Furuya.
Q. Mr. Ozasa, tell us of your own knowledge as
to whom prepared the script for Miss Toguri?
Q. Of my own knowledge, I know that Mr.
Cousens prepared the script.
Q. Have you actually seen Mr. Cousens prepare
the script?
454 Iva Ikuko Toguri D' Aquino
(Deposition of George Ozasa.)
A. Yes. I saw Miss Toguri and Mr. Cousens go
over the scripts.
Q. Did Miss Toguri ever change the scripts?
A. I don't know that. I saw them go over the
scripts together, and he would coach her on how^ to
stress this point or that point, but what was actually
in the script I never saw ; I only heard it over the
broadcast.
Q. When did Major Cousens leave the Radio
Station? A. What do you mean?
Q. Did Cousens remain at the radio station until
the end of the war ? '
A. The early part of August.
Q. You are positive that Major Cousens re-
mained at the radio station and prepared scripts
for Miss Toguri up until August, 1945 ? [16]
A. Toward the end of the war, as I said, Miss
Toguri was not on the program any more in August.
* Q. Give the date, approximately, when Miss
Toguri quit participating in the Zero Hour pro-
gram ?
A. To my knowledge, about the middle of July.
Q. Major Cousens was still there at that time?
A. Yes; he was participating in the Zero Hour.
Q. He w^as writing Miss Toguri 's scripts up until
July, 1945 ? A. So far as I know, he was.
Q. What was the purpose of Miss Toguri 's part
on the Zero Hour program?
A. I would say that her part was to furnish
entertainment.
vs. United States of America 455
(Deposition of George Ozasa.)
Q. Did you testify in your direct examination
that it was to draw listeners among the soldiers ?
A. Yes.
Q. You are telling us that Miss Toguri's part
was to draw listeners ? A. Yes.
Q. Was there any propaganda on the Zero Hour
after Miss Toguri's part on the program?
Mr. Collins: I submit, if Your Honor please,
that is calling for the opinion and conclusion of the
witness; improper cross-examination, incompetent,
irrelevant and immaterial.
Mr. De Wolfe: On direct examination my recol-
lection is that there is testimony, I think in part
over my objection, as to whether the program had
anything further in it, or anything of a progaganda
nature. Those were the very words that I remem-
bered in the question propounded on direct exami-
nation.
Mr. Collins: My recollection is that it was
stricken.
Mr. DeWolfe: No sir, my objection to that was
overruled.
The Court: Read the question Mr. Reporter.
(Question read.)
The Court: It may be answered. Objection will
be overruled.
A. You mean in her part?
Q. After her part was over, was there any propa-
ganda following her part in the Zero Hour program ?
456 Iva Ikuko Toguri D' Aquino
(Deposition of George Ozasa.)
A. I am not sure whether she went on in the
beginning or the end.
Q. Was there any propaganda at all broadcast
on that Zero Hour program?
Mr. Collins: I submit, if Your Honor please,
that is calling for the opinion and conclusion of the
witness; it is improper cross-examination and it is
incompetent, irrelevant and immaterial.
The Court: Eead the question.
(Question read.)
The Court: Objection will be overruled; he may
answer.
A. All news and commentaries read were proga-
ganda.
Q. When you were present in the studio and ob-
served Miss Toguri broadcast, did you ever hear
her make a remark such as this: ^^Boneheads of the
Pacific, don't you wish you were home by the fireside
or home with an ice cold drink or walking or driving
in the woods with your girl friend, [17] instead of
being in the foxholes or jungles fighting mosquitoes" ?
A. No, I did not. I heard her use the expression
^^Boneheads," but I never heard the other part.
Q. You never heard her mention, ' ' Don 't you wish
you were home by the fireside"? A. No.
Q. Do you remember making a statement to Spe-
cial Agent Tillman of the FBI?
A. I spoke with him, yes.
Q. Did you tell Mr. Tillman at the time you spoke
to him that you heard Miss Toguri say, ^^Boneheads
vs. United States of America 457
(Deposition of George Ozasa.)
of the Pacific, don't you wish you were home by the
fireside rather than fighting mosquitoes in the
jungles"?
A. No, I never made that statement to him. I
made the expression ^^Boneheads of the Pacific." I
heard that several times on the air.
Q. When did you talk to Mr. Tillman ?
A. In January — I just saw him once or twice.
Q. Do you recall telling Mr. Tillman that the
purpose of the program was to make the American
soldiers in the Southwest Pacific homesick '^
Mr. Collins : I object to that on the ground that
it is improper cross-examination; it is not proper
impeachment; no foundation has been laid; and it
is incompetent, irrelevant and immaterial.
The Court : Read the question.
(Question read.)
The Court: Objection will be overruled; he may
answer.
A. Yes.
Q. Did Miss Toguri appear to be pleased with
her success as an announcer on the Zero Hour pro-
gram 1
A. I didn't know Miss Toguri well enough to
answer that question. I knew her by sight but I
was not on speaking terms with her.
Q. Did you ever observe anything concerning
Miss Toguri which indicated an unwillingness to
participate in the radio broadcast?
458 Iva Ikuko Toguri D^ Aquino
(Deposition of George Ozasa.)
A. If you could call the fact that she was not
on time for her broadcasts unwillingness to par-
ticipate in the program. [18] When she was sched-
uled on the first part of the program and she was
not on time, they would have to switch her part
to the end.
Q. My question was, did you ever observe any-
thing to indicate an unwillingness on her part to
participate in this radio broadcast?
A. That is the only answer I could make. I did
not know her very well, as I very seldom spoke
to her.
Q. Do you recall telling Mr. Tillman that you
never heard any comments that indicated that she
was unwilling to participate in the radio broadcast ?
Mr. Collins: I object to that on the grounds that
it is calling for the opinion and conclusion of the
witness, would be hearsa}^ and is not proper im-
peachment, no foundation has been laid, and it is
incompetent, irrelevant and immaterial.
The Court : The objection will be overruled.
Mr. Collins : And improper cross-examination.
A. No, I have never said anything like that.
My only speaking acquaintance was to say ^' hello"
or ^^good afternoon."
Q. I think that is all.
Re-direct Examination
By Mr. Tamba :
Q. Mr. Ozasa, do you know the name of the
Kempei-tai who questioned you?
vs. United States of America 459
(Testimony of George Ozasa.)
A. No, I don't.
Q. How many different members of the Kempei-
tai questioned you ?
A. As I recall there were several fellows around.
Q. Do you know the name of the Kempei-tai who
searched your home in your absence ?
A. No. They never gave names.
Q. Regarding the actual playing of the records,
did Miss Toguri ever put a record on the machine
or was that done by someone else ?
A. I don't know if she ever acted in that capac-
ity of record playing.
Q. But you know that she introduced records?
A. Yes.
Q. Do you know whether or not Miss Toguri ever
became a Japanese citizen? [19]
A. I don't know.
Q. Did you ever see prisoners of war slapped?
A. No.
Q. Do you recall Mr. Cousens being absent from
the radio station on account of illness?
A. Yes. He was in the Juntendo Hospital. One
of the hospitals right near the Apartments.
Q. How long was he in that hospital, if you
know? A. I don't know.
Q. Can you give us an estimate?
A. Two or three weeks.
Q. Do you know what year that was?
A. No, I don't know — end of 1943 or early 1944;
I am not sure.
460 Iva Ikuko Toguri D^ Aquino
(Testimony of George Ozasa.)
Q. Did you ever see Mr. Ince coach Miss Toguri ?
A. I have seen him several times giving pointers
on announcing. He used to be the coach for all the
annoimcers.
Q. That is all.
Re-Cross-Examination
By Mr. Story :
Q. Do you know Mr. Philip D 'Aquino?
A. He is Miss Toguri 's husband. I recall seeing
him several times around the radio station, but who
he was I had no knowledge.
Q. Have you talked to Mr. D 'Aquino since you
talked to Mr. Tillman in January of this year?
A. The first time I met Mr. D 'Aquino was after
the war when I went to Mr. Tamba's office.
Q. Did you talk to Mr. D 'Aquino?
A. Mr. Tamba was there and Mr. Nakamura and
several others.
Q. Have you talked to Mr. D 'Aquino alone?
A. No.
Q. At any time since you talked to Mr. Tillman ?
A. No. [20]
Mr. Tamba: As a matter of fact, I introduced
you to Mr. D 'Aquino, isn't that a fact?
A. Yes.
Q. That is all. [21]
vs. United States of America 461
Japan,
City of Tokyo,
American Consular Service — ss.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroard, and upon order of the United
States Distri<3t Court, made and entered March 22,
1949, in the Matter of the United States of America,
Plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
Tamba, Counsel for the defendant Iva Ikuko Toguri
D Aquino I examined George Ozasa, at my office in
Room 335, Mitsui Main Bank Building, Tokyo,
Japan, on the twentieth day of April, A.D. 1949,
and that the said witness being to me personally
known and known to me to be the same person
named and described in the interrogatories, being
by me first sworn to testify the truth, the whole
truth, and nothing but the truth in answer to the
several interrogatories and cross-interrogatories in
the cause in which the aforesaid stipulation, court
order, and request for deposition issued, his evidence
462 Iva Ikuko Toguri D^ Aquino
was taken down and transcribed under my direction
by Irene CuUington, a stenographer who was by me
first duly sworn truly and impartially to take down
in notes and faithfully transcribe the testimony of
the said witness George Ozasa, and after having
been read over and corrected by him was subscribed
by him in my presence; and I further certify that
I am not counsel or kin to any of the parties to
this cause or in any manner interested in the result
thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this fifth day
of May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 806 ; Tariff No. 38 ; No fee prescribed.
[Endorsed] : Filed Aug. 25, 1949.
No. 12383
Winitth States;
Court of appeals;
for tfje ^intf) Circuit.
IVA IKUKO TOGUEI D 'AQUINO,
Ai)pellant,
vs.
UNITED STATES OF AMERICA,
Appellee.
Cransfcript of Eecorb
In Two Volumes
Volume II
(Pages 463 to 871)
Appeal from the United States District Court,
Northern District of California,
Southern Division.
MAY 41950
Phillips & Van Orden Co., 870 Brannon S^''6et|/§91|F''aKisc«!|^Mifc|pik|
CLERK
No. 12383
Winittti States;
Court of Sppeafe
for ttje ligintfj Circuit.
IVA IKUKO TOGURI D 'AQUINO,
Appellant,
vs.
UNITED STATES OF AMERICA,
Appellee.
Cransicript of J^ecorb
In Two Volumes
Volume II
(Pages 463 to 871)
Appeal from the United States District Court,
Northern District of California,
Southern Division.
Phillips Gr Van Orden Co., 870 Brannan Street, San Francisco, Calif.
vs. United States of America 463
In the Southern Division of the United States
District Court for the Northern District of
California
No. 31712 R
UNITED STATES OF AMERICA,
Plaintiff,
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OF NICOLAAS SCHENK
Deposition of Nicolaas Schenk, taken before me,
Thomas W. Ainsworth, Vice Consul of the United
States of America, in Mitsui Main Bank Building,
Room 335, in Tokyo, Japan, under the authority of
a certain stipulation for taking oral designations
abroad, and upon order of the United States Dis-
trict Court, made and entered March 22, 1949, in
the Matter of the United States of America vs.
Iva Ikuko Toguri D 'Aquino, pending in the South-
ern Division of the United States District Court,
for the Northern District of California, and at issue
between the United States of America vs. Iva Ikuko
Toguri P 'Aquino.
The plaintiff, appearing by Frank J. Hennessy,
United States District Attorney; Thomas DeWolfe,
Special Assistant to the Attorney General, and Noel
Story, Special Assistant to the Attorney General,
464 Iva Ikuko Toguri D' Aquino
and the defendant, appearing by Wayne N. Collins
and Theodore Tamba.
The said interrogations and answers to the wit-
ness thereto were taken stenographically by Mildred
Matz and were then transcribed by her under my
dire<3tion, and the said transcription being there-
after read over correctly to the said witness by me
and then signed by said witness in my presence.
It is stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objections to the use of the
deposition, or any part of the deposition, by plain-
tiff, on the plaintiff's case in chief, shall be reserved
to the time of trial in this cause.
NICOLAAS SCHENK
of Tokyo, Japan, assigned to the Netherlands Mis-
sion in Japan, of lawful age, being by me duly
sworn, deposes and says:
Direct Examination
By Mr. Tamba :
Q. Lt. Schenk, what is your full name?
A. Nicolaas Schenk, Sub-Lieutenant.
Q. And you are presently connected with the
Netherlands Legation?
A. I am working as custodial officer of the
Netherlands Mission in Japan, Tokyo.
Q. You are a citizen and national of the Nether-
lands? A. Of the Netherlands, yes, sir.
vs. United States of America 465
(Deposition of Nicolaas Schenk.)
Q. And you were a prisoner of war at Camp
Bunka ? A. Yes, sir.
Q. When and where were you captured by the
Japanese forces?
A. I was captured the 6th of May, 1942, in Pale-
dang Soetji, Java.
Q. After your capture where were you taken ?
A. To a prison in Garoet, and upon release from
prison, interned in a prisoner of war camp.
Q. Where was that prisoner of war camp ?
A. Also in Garoet, the same place.
Q. When you were first apprehended were you
interviewed by the Kempei-tai ?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant and immaterial, too remote, not competent ;
it doesn't have to do with Radio Tokyo, this man
was not on Radio Tokyo on the Zero Hour program.
The Court: Submitted?
Mr. Collins: Yes.
The Court: The objection will be sustained.
(A. Yes, sir.)
Q. Tell us generally what that interview con-
sisted of.
Mr. DeWolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: The objection will be sustained.
(A. Mainly, torture.)
Q. Can you describe the torture ?
Mr. DeWolfe: Objected to as immaterial and
incompetent.
466 Iva Ikuko Toguri B' Aquino
(Deposition of Mcolaas Schenk.)
The Court: The objection will be sustained.
(A. Standing out in the sunshine for a couple of
hours with arms stretched sidewards, standing at
attention all the time.)
Q. How about food and water ?
Mr. De Wolfe: Objected to as irrelevant.
The Court: The objection will be sustained.
(A. None.)
Q. When you went to this prisoner of war camp,
how long did you remain there I
A. I remained there until July of the same year,
1942. I was then transferred to a camp in Tjimahi.
Q. How long did you remain at that camp %
A. Until September of the same year. After-
wards I was transferred to Batavia.
Q. How long did you remain in that camp? In
the camp in Batavia?
A. Until December of the same year.
Q. And eventually you were brought to Japan?
A. Brought to Japan in June, 1943.
Q. And when you were brought to Japan where
were you taken?
A. To the mine workers camp, Orio, Kyushu.
Coal mine.
Q. You worked in the coal mines ? A. Yes.
Q. How long did you remain there ?
A. Until I was brought to Tokyo in September,
1943.
Q. And where were you taken in Tokyo ?
A. First to Camp Omori and in October, be-
vs. United States of America 467
(Deposition of Nicolaas Schenk.)
ginning of October, I believe, it was the same year,
I was brought to Bunka Camp, Kanda.
Q. Were you told why you were brought to
Bunka Camp ? A. No, sir.
Q. And was Bunka camp known by any other
name than Bunka camp ?
A. The name Bunka became known to us after
we were in the camp but before that we did not
know the name.
Q. And I assume you were there with a number
of other prisoners of war ^
A. We came up to Tokyo with a whole bunch
of people, and from about fifty to sixty people who
were kept secluded from the other prisoners, there
were selected about a dozen who were told to pa-ck
their belongings and were put on a truck and
brought to the camp which we later learned to be
Bunka Camp.
Q. Were you given any orders, at Bunka Camp,
to broadcast?
Mr. De Wolfe: Objected to as immaterial, noth-
ing to do with the Zero Hour program, too remote.
Mr. Collins: That remains to be seen, if Your
Honor please.
The Court: Submitted?
Mr. Collins : That is the time they were brought
here, apparently in December of 1943. Yes.
Mr. DeWolfe: Object to it likewise as hearsay.
The Court: Submitted?
Mr. Collins: Yes.
468 Iva Ikuko Toguri D' Aquino
(Deposition of Nicolaas Schenk.)
The Court: The objection will be sustained. [2*]
(A. The first speech we got did not actually say
what the work would be. However, it was pointed
out that the Japanese expected us to cooperate with
them to secure peace, and those who did not want
to cooperate would be executed.
Q. Who made that speech?
Mr. DeWolfe: Objected to as hearsay, incompe-
tent, irrevelant and immaterial.
Mr. Collins: I might point out, if your Honor
please, that this is the speech of Major Tsuneishi,
this is direct impeachment of the testimony of
Major Tsuneishi, and the preceding question goes
direct to the very same thing.
The Court: The objection will be sustained.
(A. That was made, I believe, by Major Tsu-
neishi.)
Q. Was that speech translated into English?
Mr. DeWolfe : Objected to as hearsay, irrelevant,
not germaine to the case, incompetent, not related
to the Zero Hour.
The Court: The objection will be sustained.
Mr. Collins: It goes to the question of duress,
if your Honor please, which was directly communi-
cated to the defendant by the testimony of the wit-
ness Cousens.
The Court: The court has ruled.
(A. It was translated into the English language
by either Uno or Ikeda.)
* Page numbering appearing at top of page of original
Reporter's Transcript.
vs. United States of America 469
(Deposition of Nicolaas Schenk.)
Q. Was Tsuneishi wearing his uniform'?
Mr. DeWolfe : Objected to as not germaine, hear-
say, incompetent.
The Court : The objection will be sustained.
(A. I have never seen Major Tsuneishi in other
dress than uniform.)
Q. Did he have any other things with his habit
besides the uniform 1
Mr. DeWofe: Objected to as incompetent, ir-
relevant and immaterial.
The Court : The objection will be sustained.
(A. You are referring to a sword?) [3]
Q. I am referring to a sword.
Mr. DeWolfe : I object to that as irrelevant, im-
material, incompetent.
The Court: Objection sustained.
(A. He always wore a sword.)
Q. Did you ever see Tsuneishi without a sword?
Mr. DeWolfe: Object to that as incompetent,
irrelevant and immaterial.
The Court: Objection sustained.
(A. No, sir.)
Q. Did he wear any insignia of a staff officer?
Mr. DeWolfe: Objected to as irrevelant.
The Court: The objection will be sustained.
(A. He wore on the left shoulder the gold wire
gadget which was designed for the general staff.)
Q. When this speech was made, what happened?
Mr. DeWolfe: Objected to as incompetent.
The Court: The objection will be sustained.
470 Iva Ikuko Toguri D' Aquino
(Deposition of Nicolaas Schenk.)
(A. A British citizen by the name of Williams
stepped forward and told, in so many words, that
he was not capable of giving any cooperation what-
soever.)
Q. What happened to Williams ?
Mr. De Wolfe: Objected to as incompetent.
The Court: What happened to who?
Mr. DeWolf e : And hearsay.
The Court : Read that question again.
Q. What happened to Williams ?
The Court: Williams?
Mr. Collins : Yes.
Mr. DeWolf e : He is another prisoner of war.
Mr. Collins: Well, may I state this, if Your
Honor please, to refresh the recollection of the
court. In connection with this very question, the
testimony of Major Tsuneishi related directly to
this very occurrence.
The Court: What occurrences? [4]
Mr. Collins : The occurrences at Camp Bunka on
the occasion of his speeches to the prisoners of war
there assembled to his two distinct speeches, as to
what Major Tsuneishi said. And what he did not
say.
The Court : I am satisfied we are going afield if
we indulge in that line of examination. I always
try, and always have tried, to be very liberal in
relation to the admissibility of any evidence ; I have
allowed the widest scope. Now I am prepared to
vs. United States of America 471
(Deposition of Nicolaas Schenk.)
rule on this question, and I will sustain the objec-
tion.
(A. He was immediately brought away.)
Q. Were you ever told what happened to Wil-
liams at that time?
Mr. De Wolfe : Objected to as hearsay, incompe-
tent, irrelevant.
The Court: Objection sustained.
(A. We were not told, but upon questioning by
us we were given to believe that Williams was
executed.)
Q. Now, was any speech made after that by
Major Tsuneishi, in the dining room?
Mr. DeWolfe: Object to that as incompetent,
irrelevant, and immaterial.
The Court: Yes, the objection will be sustained
again.
Mr. Collins: I call your Honor's attention to
the impeachment of the testimony of Major Tsu-
neishi, given on that stand.
The Court : For that limited purpose I will allow
it. With the hope that we will go along here and
finally get through.
A. We had a speech almost every day in the
period of about two, three months, and all the
speeches were, to my opinion, intended to break us
down mentally and to force us to believe that there
was no way out and that it was the pure intention
of the Jai)anese to use us as a vehicle for their own
means and if we were not willing to do what they
472 Iva Ikuko Toguri D' Aquino
(Deposition of Mcolaas Schenk.)
wanted us to do, well, then there was a way out —
to execute us. One line I particularly remember is
that ^^ nothing is guaranteed/' It was used almost
daily by Ikeda and Buddy Uno. [5]
Mr. DeWolfe: Move to strike that answer, your
Honor, as not responsive to the question. The ques-
tion was, ^^Was any spee<3h made'"? And then he
goes into his opinion.
The Court : I will allow the question and answer
to stand.
Q. Do you recall a speech made by Tsuneishi,
which w^as translated by Uno or Ikeda in the dining
room, which I referred to as the second speech,
that there were no guards to be posted around the
camp'? A. Yes, sir, I do.
Mr. DeWolfe: Objected to as immaterial, incom-
petent, irrelevant, and too remote to the issues in-
volved. It relates to Camp Bunka. It does not
relate to the Zero Hour program. It is going into
a collateral matter, not involving an issue in the
trial of this case.
Mr; Collins : It goes directly to the circumstances
under which the prisoners of war were held at
Bunka, and the faets of the duress were communi-
cated to the defendant, and the witnesses at this
trial have so testified.
The Court: The objection will be sustained.
(A. Yes, sir, I do. It was during the evening
meal. We had on the second floor of the location
where we were billeted, what we called the dining
vs. United States of America 473
(Deposition of Nicolaas Schenk.)
room. By that time Tsuneishi held a speech and it
was translated to us by Uno, in which he urged
each that, as we could see, there were no fence
around except a wall which could be easily climbed
over, but he wanted us to know that this was par-
ticularly to see how it worked upon us because he
wanted us to realize that we were white men and
the surroundings were Japanese and he could swear
that anybody of us coming across the fence would
be brought back in pieces.)
Q. What were your official duties at the camp
when you first got there?
A. I was put in charge of the food supplies, and
its preparing, and as an assistant I got an Austral-
ian boy by the name of Parkyns.
Q. In other words, you were the cook?
A. Yes, the cook. [6]
Q. How was the food you got there ? Was it
adequate ?
Mr. De Wolfe: I object to that as incompetent,
irrelevant and immaterial; a collateral matter. It
does not involve the Zero Hour at Radio Tokyo.
This man was not on that program.
Mr. Collins : It relates to the conditions of duress
under which the defendant was held. Those facts
were communicated to the defendant.
Mr. DeWolfe: These facts were not, according
to the testimony of this witness, communicated to
the defendant. There is no showing to that effect.
Mr. Collins : There is a showing to that effect by
474 Ivalkuko ToguriB' Aquino
(Deposition of Mcolaas Schenk.)
the witness who testified they were retained there
and they were starved.
The Court: The objection will be sustained.
(A. Absolutely inadequate.)
Q. Please tell us in what particular ^
Mr. De Wolfe: I object to that as too remote, in-
competent, irrelevant, nothing to do with the Zero
Hour.
The Court: The objection will be sustained.
(A. We got a ration of three teacups of kaoliang
per day and three bowls of soup to get that down
with. The bowls of soup were a little bit larger than
the teacups. The soup merely consisted of daikon,
which is horse-radish, a little salt, a little soya, to
which water was added.)
Q. What does this kaoliang consist of ^
Mr. DeWolfe: That is a food, I presume. Your
Honor. I object to it as incompetent, irrelevant
and immaterial.
The Court: The same ruling. Objection sus-
tained.
(A. The kaoliang is a kind of a corn which the
encyclopedia describes as a vehicle to fill the bellies
of chicken, and its effect is severe beri-beri and
palagra.) [7]
Q. Did any of the civilian employees and officers
of the Japanese army of Kempei-tai take part of
your rations'?
Mr. DeWolfe: Objected to as immaterial, not
relevant to the issues involved.
vs. United States of America 475
(Deposition of Nicolaas Schenk.)
The Court: The objection may be overruled. He
may answer.
A. That happened daily from the start.
Q. What did they do?
Mr. DeWolfe: I object to that as not being ma-
terial to the issues involved concerning the defend-
ant's participation in the Zero Hour program, what
the Jap officers did with the prisoners of war in
camp with respect to their prisoner of war rations,
sir.
The Court: Submitted?
Mr. Collins: Yes.
The Court : Objection sustained.
(A. I was issued by the supply man, Ishikawa,
a certain amount of rice for so many prisoners of
w^ar and by the time it was prepared I was told to
separate so much for the school boys who were
w^orking there, a civilian who was supposed to be
guarding us, and who spoke a little bit of English,
that was three, and later that number was increased
to five.)
Q. In other words, they would take their ra-
tions, and
Mr. DeWolfe: I object to that as leading and
collateral, immaterial, incompetent, nothing to do
with the defendant's participation in the Zero
Hour ; too remote.
The Court: The objection will be sustained.
(A. And leave w^hat was left.)
476 Iva Ikuko Toguri D' Aquino
(Deposition of Nicolaas Schenk.)
Q. Did any of the prisoners of war show evi-
dence of malnutrition ?
Mr. De Wolfe: Object to that as having noth-
ing to do with the issues here involved ; incompetent
and irrelevant.
The Court: The objection will be sustained.
Q. Will you describe some of these effects'?
Mr. De Wolfe: I object to that as incompetent,
irrelevant and immaterial.
The Court : The objection is sustained.
(A. Kalbfleisch broke out into boils in a very
short time. McNaughton got the same trouble.
Major Cox laid down for about [8] three months,
not being able to move; Larry Quilly lost in about
six months about forty pounds; 1, myself, suffered
a diminishing of eyesight, and later my legs, what
you call the adequate name they got for it, my legs
did not come in use.)
Q. In other words, your legs would not func-
tion?
Mr. De Wolfe: I object to that as immaterial
and incompetent.
The Court: Objection sustained.
(A. Yes.)
Q. Was beri beri prevalent in the camp ?
Mr. DeWolfe: I object to that as incompetent,
irrelevant and immaterial.
The Court: Objection sustained.
Mr. Collins : May I point out that these matters
were communicated to the defendant ?
vs. United States of America 477
(Deposition of Nicolaas Schenk.)
The Court : Who is testifying ?
Mr. Collins: This is Nicolaas Schenk, prisoner
of war, who was detained there.
The Court: The Court has ruled. There is no
connection between this witness testifying now and
the issues involved in this case, which concern acts
alleged to have occurred at this radio broadcasting
station.
(A. All of us had it.)
Q. Do you recall any prisoner of war suffering
from temporary blindness ?
Mr. De Wolfe: Objected to as too remote, imma-
terial and incompetent, nothing to do with the
issues here involved.
The Court : Objection is sustained.
(A. Capt. Kalbfleisch was complaining of it,
and, I believe, Mark Streiter.)
Q. Do you recall any of the prisoners of war
losing their hair because of deficiency of vitamins
in their diet?
Mr. De Wolfe: Objected to as calling for conclu-
sion ; incompetent and immaterial.
The Court: Objection sustained.
(A. I believe it was Larry Quilly.) [9]
Q. Would you tell us what you did, or other
prisoners of war did, in order to secure food around
the camp?
Mr. DeWolfe: Objected to as immaterial and
incompetent.
The Court: Objection sustained.
(A. Sometimes Major Cousens, Capt. Ince,
478 Iva Ikuko Toguri B^ Aquino
(Deposition of Mcolaas Schenk.)
brought some foodstuffs he got from the boys and
girls at Radio Tokyo ; we had, further, an old lady
and a husband living in the basement of our quar-
ters, who were sent out once in a while to get us
some food items and the rest was stolen and we
grazed the trees.)
Q. What do you mean by grazed the trees'?
Mr. De Wolfe: Objected to as immaterial and
incompetent.
The Court: Objection sustained.
(A. We collected the young leaves from the
trees. We had several trees around the place and we
used to take the young leaves because it was proven
in Singapore that they were quite edible.)
Q. How about dogs and cats^
Mr. DeWolf e : Objected to as incompetent, irrele-
vant and immaterial.
The Court: Objection sustained.
(A. We had quite a few when we came and when
we left there were none.)
Q. How many did you consume ?
Mr. DeWolf e : Objected to as incompetent, irrele-
vant and immaterial.
The Court: Objection sustained.
(A. I personally killed two cats.)
Q. What other prisoners of war ?
Mr. DeWolf e : Objected to as incompetent, irrele-
vant and immaterial.
The Court : Objection sustained.
Q. Did you consume any dogs ?
vs. United States of America 479
(Deposition of Nicolaas Schenk.)
Mr. De Wolfe: Objected to as immaterial and
incompetent.
The Court: Objection sustained.
(A. Yes, sir.)
Q. How many, do you recall?
Mr. DeWolf e : Objected to as immaterial and in-
competent and irrelevant. [10]
The Court: Objection sustained.
(A. At least two.)
Q. Incidentally, was Kalbfleisch taken away
from the camp ?
Mr. De Wolfe: Objected to as hearsay; incom-
petent, irrelevant and immaterial. Kalbfleisch is
here as a defense witness. I do not know whether
his testimony is going to become competent on that
point. It is better to wait and see.
Mr. Collins: This is testimony of the circum-
stances under which Kalbfleisch was taken away.
The fact was communicated to the defendant. Kalb-
fleisch was taken away to be executed.
Mr. DeWolf e : There is no such showing.
The Court : The objection is sustained.
(A. Kalbfleisch was taken away, I believe, in the
middle or the beginning of 1944, I am not sure. He
was taken away very suddenly. We were called
together in the room by Uno and somebody from
the Japanese headquarters of the general staff read
to us in Japanese, which was partially translated by
Uno, and Kalbfleisch was led away, brought up-
stairs to the officers' room, to pack a few things.
480 Iva Ikuko Toguri D' Aquino
(Deposition of Nicolaas Schenk.)
and was not even able to say goodby to any of the
boys, and taken out of the camp.)
Q. Were you led to believe that Kalbfleisch was
executed %
Mr. De Wolfe: Objected to as calling for a con-
clusion ; incompetent, irrelevant and immaterial,
what he was led to believe.
The Court: What he was led to believe will go
out; let the jury disregard it. The objection is
sustained.
(A. Yes, sir.)
Q. And how did you come to that conclusion?
Mr. De Wolfe: I object to that as calling for a
conclusion.
Mr. Collins : This relates now to what they were
told by the officers at Bunka.
The Court: Objection sustained.
(A. Uno told us during a discussion on com-
mentaries. I believe it was to Shattles, who refused
to take a part in a script from Mark Streiter, that
in case he refused to obey orders he would go the
same way as Kalbfleisch. They were intending to
say that Kalbfleisch was executed.) [11]
Q. Let me ask you, Lt. Schenk, did any of the
prisoners of war voluntarily broadcast over the
Japanese radio?
Mr. De Wolfe: I object to that as calling for a
conclusion of law.
The Court: Objection sustained.
(A. Not to my opinion, sir.)
vs. United States of America 481
(Deposition of Nicolaas Scbenk.)
Q. Were any of the prisoners of war around the
camp slapped by Japanese army officers or civilians.
Mr. DeWolfe: I object to that as incompetent,
irrelevant and immaterial; not connected with the
defendant or the issues here involved.
The Court: Objection sustained.
(A. Quite repeatedly.)
Q. Who, sir?
Mr. DeWolfe: I object to that as incompetent
and immaterial.
The Court: Objection sustained.
Mr. Collins: May I point out, if your Honor
please, that that very question goes to the question
of whether or not a member of the Zero Hour pro-
gram himself w^as beaten.
The Court : Read the question again.
Mr. Collins: The question was, ^'Who, sir?"
The preceding question to which there was an an-
swer was: ^^Were any of the prisoners of war
around the camp slapped by Japanese army officers
or civilians?''
The Court: I sustained the objection.
(A. Leaving myself out, I know and I have
seen that Larry Quilly has been beaten quite re-
peatedly; that Capt. Ince was beaten quite severely;
that Henshaw has been beaten; Parkyns, Shattles
and myself.)
Q. Who beat the prisoners of war ?
Mr. DeWolfe : I object to that as immaterial and
incompetent and irrelevant.
482 Iva Ikuko Toguri D^ Aquino
(Deposition of Mcolaas Schenk.)
The Court: Objection sustained.
(A. Lt. Hamamoto; a sergeant from the Kempei
tai, I do not recall his name though ; and Mr. Uno,
and two or three other Japanese whom I am not
able to recall by name. Shishikara was another
name, and Endo.)
Q. Did Ikeda beat the prisoners %
Mr. DeWolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Same ruling.
(A. Ikeda never did.)
Q. Who was Ikeda 's brother-in-law?
A. He brought the brother-in-law in who was
presented to us as a director of music.
Q. Was he at the camp ?
A. He was — he did not give to me the impres-
sion as being regularly connected with the camp,
but he came a few times.
Q. Was Hamamoto under Tsuneishi?
A. Yes, sir.
Q. And Ikeda? A. I think so.
Q. And Uno? A. Same.
Q. And the sergeant you mentioned ?
A. Yes, sir.
Q. Was the Kempei tai stationed at the camp
continually ?
Mr. DeWolfe : I object to that as immaterial and
incompetent; not connected with the issues in the
case.
(A. Yes, sir.)
Q. Did they keep a room at the camp ?
vs. United States of America 483
(Deposition of Nicolaas Schenk.)
Mr. DeWolf e : Same objection.
The Court: Same ruling. The objection is sus-
tained.
(A. They kept a room. Lt. Hamamoto kept a
room directly across the prisoner of war location;
the sergeant occupied a room on top of the main
building, looking quite directly into the rooms of
the enlisted men and officers, while some other fel-
lows had their room on the right side of the camp
so that we really were rather good guarded.) [13]
Q. Will you tell us about the occasion when
Capt. Ince was slapped.
Mr. De Wolfe: I object to that as being incom-
petent, irrelevant and immaterial.
The Court: When?
Mr. Collins: This is in December, 1943, if your
Honor please, while they were on the Zero Hour
program.
The Court: That question does not indicate the
time.
Mr. Collins : The foundation is laid for the very
time by the testimony of other witnesses.
The Court: The objection will be sustained.
(A. Captain Ince. I saw him beaten once during
a morning exercises. Ince was quite a while sick,
suffering from neuralgia and beri-beri, and was
a weak fellow. In fact he weighed at that time about
one hundred and thirty pounds, at the most, and he
was about a head taller than I am, so it was not
much. We were standing in the courtyard and Ince
484 Iva Ikuko Toguri D' Aquino
(Deposition of Nicolaas Schenk.)
was called out that he had to go out and do exer-
cise, by the sergeant of the Kempei tai. So Ince
came out in line and were were told to do an exer-
cise by which the head had to bend low, and doing
that on an empty belly, it made Ince, as well as
others, dizzy, so Ince was trying to get up again, and
was a little too groggy, and at that moment we
heard a loud scream and Lt. Hamamoto came out
from his room, rmming into the courtyard directly
up to Ince and with all his might he placed an
uppercut on Ince's chin and Ince was knocked out
and lay unconscious for a few minutes. From per-
sonal experience I would like to add to this that I
know that the swing from Lt. Hamamoto was pretty
severe because he knocked me out, myself, when
I complained about food, and it took me four days
to recover from that.)
Q. When the prisoners of war were first ordered
to broadcast, were they broadcasting from scripts
prepared by themselves? A. No, sir. [14]
Mr. DeWolfe : What line is that?
Mr, Tamba : 22.
Mr. Collins : Page 9.
Mr. DeWolfe: I am sorry. I was looking at a
criminal rule with respect to this.
The Court: We will take a recess so you can
look further.
Mr. DeWolfe: I was looking at a rule on this
point and I lost the place.
(Thereupon a recess was taken.)
vs. United States of America 485
(Deposition of Nicolaas Schenk.)
(The deposition of Nicolaas Schenk is being
read.)
The Court: Proceed.
Mr. Collins : Line 25.
Q. Who prepared the scripts, if you know?
Mr. De Wolfe: I object to that as incompetent,
irrelevant and immaterial, having nothing to do
with the Zero Hour.
The Court : Nothing to do with* the script ?
Mr. DeWolfe: These are scripts of the Zero
Hour program.
Mr. Collins: You are assuming something, Mr.
DeWolfe.
The Court: I will allow it. The objection is over-
ruled.
A. We were later told by Hiyoshi and Osaki that
the scripts were prepared by people working at
Domei, who received a pretty good payment for it.
The Court: The objection will be sustained. Let
it go out and let the jury disregard it.
Q. Later were prisoners of war ordered to pre-
pare the scripts?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant and immaterial, not relative to the issues
here involved.
The Court : I will allow him to answer.
A. Yes.
Q. Tell us about the blackboard assignments.
Mr. DeWolfe: I object to that as incompetent,
486 Iva Ikuko Toguri D^ Aquino
(Deposition of Nicolaas Schenk.)
irrelevant and immaterial. These are prisoner of
war broadcasts. They have nothing to do with the
Zero Hour.
Mr. Collins : You are assuming something there,
Mr. DeWolfe.
Mr. DeWolfe : There is no testimony hooking it
up with the issues involved. [15]
The Court: I have not seen those depositions at
all. I do not know what is in them and I do not
know what follows. Unless they are connected up,
of course they will have to go out. I will sustain
the objection.
(A. Uno came over to our quarters and told us
that Tsuneishi had ordered that the blackboard
should be put on the wall, bearing the names of all
prisoners of war and showing exactly their activi-
ties in connection with the program. We were called
to attention in the bedroom and Uno pointed out
that each and everyone of us had to participate in
the broadcast and full cooperation was expected,
otherwise nothing would be guaranteed. In spite
of the rather severe instructions from Uno a few
of us made some comment to the effect as: ^^Sir, I
have never broadcast," and ^'I am stammering,"
like Lance Corporal Bruce, British Forces and I,
myself, pretended that I could not speak English
or understand it well enough, and also a few others,
whom I do not recall by name. To all this Uno said
that he had nothing to do with that; we had to
broadcast. The scoreboard was put in the officers'
vs. United States of America 487
(DeiJosition of Nicolaas Schenk.)
room and Uno himself marked off on that board
how many commentaries were turned in ; how many
were approved; how many were broadcast, and
other activities, and later, much later, when we got
our first Red Cross packages this scoreboard was
used as the determination of who would get Red
Cross packages, and who would not.)
Q. AVhen did you receive your first Red Cross
package ?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Objection sustained.
(A. If I remember well I got my first Red Cross
package in the end of 1944.)
Q. Was that the first time Red Cross packages
w^ere seen around the camp?
Mr. De Wolfe: Same objection.
The Court: Objection sustained.
A. That was the first I had seen in my life.
Q. Was it or was it not intact ?
Mr. DeWolfe: Objected to as immaterial and
incompetent. [16]
The Court: Objection sustained.
(A. The first was intact.)
Q. How about the subsequent ones?
Mr. DeWolfe : Object to that as incompetent and
immaterial.
The Court: Same ruling.
(A. They had chocolate missing, cigarettes miss-
ing. As I was very fond of Camel cigarettes, I was
offered by one of the girls working for Tsuneishi
488 Iva Ikuko Toguri B' Aquino
(Deposition of Nicolaas Schenk.)
to swap the Camels for Chesterfields because her
brother liked Chesterfields better, which he smoked
before the war.)
Q. Did these prisoners of war ever receive any
hospital treatment when they were sick ?
Mr. De Wolfe : I object to that as too general, in-
competent, irrelevant and immaterial.
Mr. Collins: This relates directly to the matter
of Major Cousens, if your Honor please.
The Court: The objection will be sustained.
(A. There were only two occasions, one occasion
when a fellow got hospital treatment; in the case
of Cousens who got a heart attack in the studio.
They brought him back to the camp and upon con-
sultation he was transferred to a hospital and when
he left Uno said: ''Thank God that bastard won't
live long any more.")
Q. When was that, if you recall ? I am referring
to the time when Cousens became ill.
Mr. De Wolfe: I object to that as incompetent,
irrelevant and immaterial.
The Court: Objection sustained.
(A. It must have been in 1945. I would say in
the middle or little before the middle of 1945.)
Q. Was that the year the war ended or before
that?
Mr. DeWolfe: Same objection.
The Court: Objection sustained.
(A. It was the year the war ended.) [17]
vs. United States of America 489
(Deposition of Nicolaas Schenk.)
Q. Oh, incidentally, were you prisoners of war
preparing scripts that had a double meaning 1
Mr. DeWolfe: I object to that as incompetent,
irrelevant and immaterial, not relating to the Zero
Hour.
The Court: Objection sustained.
(A. As soon as we were told to write our own
stuff I know that all of them, with the exception of
Provoo and Streiter, each and everyone of us tried
to inject as much double meanings and information
in the scripts as possible.)
Q. Have you any reason to believe that the in-
formation you conveyed in the broadcast was re-
ceived by the American or allied forces?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant and immaterial, and hearsay.
The Court: Objection sustained.
Mr. Tamba: Line 24 on the next page, Mr.
Collins.
Mr. Collins: I will direct your Honor's atten-
tion to the fact that the answer there relates to
what Major Cousens did in connection with that
matter, in connection with the question propounded.
Mr. DeWolfe: It is wholly a collateral matter.
The defendant's name is not mentioned. There is a
lot of hearsay in it.
The Court: The objection will be sustained.
(A. I could only tell you what I know from
myself. It was after I came to Manila I was inter-
rogated several times by officers from CIC and one
490 Iva Ikuko Toguri B' Aquino
(Deposition of Mcolaas Scbenk.)
of them, I do not recall his name, told me that we
fellows had done a mighty good job; that it was
appreciated; that they had tried to come in contact
with US by broadcasting short wave to us so as to
get a better contact. However that they did not
have any confidence in those tryings because they
suspected us not to be able to receive, and after-
wards I know only of one occasion which was rather
touching to. It was in August we got a big air raid
and were surprised there were no bombs dropped
but leaflets. We got some leaflets from one Japa-
nese who brought it to us with a rather signiflcant
remark that these leaflets ^Svere exact opposites
from what the people back home actually intended
to tell us," I mean the [18] leaflet showed a pre-
pared rice table and on one side of the rice table
was one big mistake according to Japanese custom
because the chopsticks were on the right side in-
stead of front, and there were a couple of other
mistakes. I brought this leaflet to Cousens and dis-
cussed it with him and he had a little experience
about the Orientals and I had a little experience,
and we thought it might be a good idea that they
should pay more attention to this because the Jap-
anese were extremely conscious of the customs and
we finally decided, after a long stroll in the court-
yard, that I should write a commentary and bring
it over the air the next morning, if possible, and
convey all the information to the Allies. I wrote
a draft and Cousens corrected it and the next morn-
vs. United States of America 491
(Deposition of Nicolaas Schenk.)
ing I gave this piece to Domato who brought it to
the office and told me about two hours later: ^^Okay,
Nick, you go on the air." Two days later we got
another air raid and again leaflets, and I got hold
of a leaflet through Parkyns who brought one from
the studio, and on those leaflets the chopsticks were
placed in front and the flower vase was standing in
the correct place.)
Q. In other words, the script which you pre-
pared called attention to the fact that the original
leaflet w^as erroneous according to Japanese
etiquette ?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Objection sustained.
(A. Yes, sir.)
Q. What kind of script did you write ? Covering
what kind of subject'^
Mr. De Wolfe : I object to that as not connected
with the issues in this case and incompetent.
The Court: Objection sustained.
(A. You mean generally?)
Q. Yes.
Mr. DeWolfe: I object to that question; incom-
petent, irrelevant and immaterial, the same matter.
The Court : The objection is sustained.
(A. Cooking lessons; talks to the women and
once in a while a [19] political commentary.)
Q. I am referring to the chopsticks. What kind
of script did you use to tell the American forces
492 Iva Ikuko Toguri D^ Aquino
(Deposition of Mcolaas Schenk.)
about the mistake they made in the rice table setting
according to Japanese custom.
Mr. De Wolfe: I object to that as incompetent,
irrelevant and immaterial.
The Court: Objection sustained.
(A. I started telling them that the Japanese
housewife had a hard time to get along with the ra-
tions they got; that they had a still harder time to
please their husbands but nevertheless they found
a way to please their husbands by cleaning the
house by the time the man came home and taking
the utmost care with the table arrangement so that
it was perfect because the Japanese men were stick-
ing to the customs and they want the rice table to
be prepared according to the old customs ; the chop-
sticks arranged just right, and I repeated that once
more at the end of the commentary.)
Q. Camp Bunka was never bombed, was it?
A. No, sir.
Q. Was the area in the immediate vicinity of
Camp Bunka bombed ? A. No, sir.
Q. How far did the bombings take place with
relation to the Bunka?
A. The exact bombings never came any further
than the university well on the safe distance from
the camp because there is a street in between and
in the front street Kanda street.
Q. Is it significant to you that Camp Bunka was
never bombed ?
Mr. DeWolfe: I object to that as calling for a
vs. United States of America 493
(Deposition of Nicolaas Schenk.)
conclusion; incompetent, irrelevant and immaterial^
not related to any issue in this case.
The Court: Objection sustained.
(A. Well, we hope that — at least some of us be-
lieved that our broadcasts were listened to by au-
thorities and that they guessed our camp was
there.)
Q. Was there any landmark about the place that
you used? [20]
Mr. DeWolfe : Same objection.
The Court: Objection sustained.
(A. We used in a couple of scripts the smoke-
stack which stands almost in the middle of Bunka.)
Q. Now, at Bunka you prisoners were quartered
in the back portion of the camp ?
A. Yes, sir.
Q. What was in the front portion ?
A. That was occupied by the officers, from
Tsuneishi and his superiors.
Q. Can you describe Major Tsuneishi to us with
regard to his manners and his stature ?
Mr. DeWolfe: I object to that as too general;
incompetent, irrelevant and immaterial ; not related
to the issues in this case.
The Court: Objection sustained.
(A. Small Japanese fellow; typical army officer;
arrogant, obviously suffering from an inferiority
complex before white men. Tried to conceal that by
acting militarily.)
494 Iva Ikuko Toguri V Aquino
(Deposition of Nicolaas Schenk.)
Q. Did you ever see him shake or rattle his
sword ?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant.
The Court: Objection sustained.
(A. That was his usual custom.)
Q. Was that true likewise of Hamamoto?
Mr. De Wolfe: Objected to as irrelevant and in-
competent.
The Court: Same ruling.
(A. Hamamoto had some more powers because
he had more physical bearing, but otherwise had
far less intelligence than Tsuneishi. Tsuneishi was
more or less to be regarded as the brain while Ha-
mamoto was to be regarded as a dumb fellow.)
Q. Did you talk with Cousens and Ince and
others from time to time, about the broadcast and
attempt to give information to the allies over the
air?
Mr. DeWolfe: I object to that as incompetent,
irrelevant and immaterial, and too general. [21]
The Court: Objection sustained.
Mr. Collins: This bears directly upon the testi-
mony of both Cousens and Ince, if your Honor
please, concerning what they were endeavoring
to do.
Mr. DeWolfe: It does not say it is with refer-
ence to the Zero Hour program. It does not men-
tion the time. It has other people in there. To me
it definitely refers to another program. There is no
vs. United States of America 495
(Deposition of Nicolaas Scbenk.)
showing it has anything to do with the program
with which the defendant was involved.
Mr. Collins: You are assuming something.
The Court: The Court has ruled. The objection
is sustained.
(A. We had several conferences about it. We
were alw^ays planning to use the information we got
into the scripts.)
Q. Lt. Scbenk, you had no part in the Zero
Hour, is that correct ?
A. Yes, that is correct.
Q. And, therefore, you are not in a position to
testify as to Iva D 'Aquino, as to what she did on
the Zero Hour ? A. No, sir.
Q. Did you ever have a discussion with Cousens
about the work he was doing in training an-
nouncers ?
Mr. DeWolfe: I object to that as calling for
hearsay; incompetent, irrelevant and immaterial.
The Court : The objection is sustained.
Mr. Collins: It relates to the training even of
the defendant.
The Court: The Court has ruled. The objection
is sustained. It is clearly hearsay.
(A. Cousens told us that he was trying to get
hold of some — to train some people who were able
to convey in scripts that double meaning as good as
possible and when I asked once if the double mean-
ing is not the same no matter how you pronounce
it, he said, no, in particular to a man who has to
496 Iva Ikuko Toguri D' Aquino
(Deposition of Mcolaas Schenk.)
listen the double meaning becomes valuable by the
pronounciation and articulation. [22]
Q. Lt. Schenk, you lived in the Orient for a
number of years? A. Yes.
Q. How many? A. Up to now about 22.
Q. Did Uno come into the broadcasting room
with the prisoners of war ?
Mr. De Wolfe: I object to that as immaterial, no
showing that it has anything to do with the Zero
Hour program, too remote; incompetent, irrelevant
and immaterial.
The Court: It has to do with the Zero Hour. I
will allow it.
Mr. DeWolfe: I said there is no showing of
that.
The Court: The question embodies that. Read
the question.
Q. Did Uno come into the broadcasting room
with the prisoners of war? A. Always.
Q. Where would he be sitting when you were
broadcasting?
Mr. DeWolfe: I object to it as incompetent, ir-
relevant and immaterial. It had nothing to do with
the Zero Hour program. For instance, this witness
has already testified on the last page he is not in
a position to testify as to Iva D 'Aquino as to what
she did on the Zero Hour. He had no part on the
Zero Hour himself, this witness, so obviously he
must be talking about some other program. It does
not relate to the issues involved in this case.
vs. United States of America 497
(Deposition of Nicolaas Schenk.)
The Court: Objection sustained.
(A. Mostly across the man who was on the air.)
Q. And what, if anything, was he doing ?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Objection sustained.
(A. Guarding us in regard to the script.) [23]
Q. Did you know Mr. Oki^
A. I now a name Oki. I would not be able to
say, ^^This is Oki, and this is Mr. Yoshi."
Q. When did you meet a man by the name of
Mr. Oki, if you recall? A. In the studio.
Q. Did you speak to him ? A. No, sir.
Q. Did he speak to you ?
A. All those Japanese around there would once
in a while speak to us, and the kind ones, so to say,
I remember quite well because their way of speak-
ing was different, all the others using more or less
ordering form of speaking.
Q. Did Oki lead you to believe that he could
not speak English ?
Mr. DeWolfe: I object to that as calling for a
conclusicm.
The Court: Objection sustained.
(A. I know one occasion when I asked a ques-
tion about needles necessary for the correct record-
ing, I got the impression he did not understand.
Later on I heard from Henshaw that that fellow
had been born in the States or had been in the
States and knew better English than even I did,
498 Iva Ikuko Toguri D 'Aquino
(Deposition of Nicolaas Schenk.)
and he said something like ^'You better watch that
fellow.''
Lt. Schenk, Mr. Storey, in one of his previous
depositions, asked about supplying women to Major
Cousens. Do you know something about that oc-
casion ?
A. When Major Cousens came in our camp, and
he and I became very intimate, he told me that pre-
viously they had been located in the Dai Iti Hotel
and that they always brought w^omen there, and
they would say: ^^ Won't you come along with us,-
we are going there and there," and that he once,
I believe it was once, that one of the fellows went dj
to Yokohama and that they insisted that he take
a girl but that he had only danced with that girl
or just sat down and drank something and after
he went home. Personally I know Cousens was of
too high moral standards to forget the fact that he
was married. Besides that I rather doubt that any-
body living under the conditions we were living
under could stand a woman. [24]
Q. Do you remember an occasion when prisoners
of war at Bunka Camp asked for a priest so that
they could have confession ?
Mr. DeWolfe: I object to that as incompetent,
irrelevant and immaterial.
The Court: Objection sustained.
(A. They asked for that repeatedly.)
Q. Did you ever receive the benefit of a priest?
vs. United States of America 499
(Deposition of Nicolaas Schenk.)
Mr. De Wolfe: I object to that as irrevelant and
incompetent.
The Court : Objection sustained.
(A. No, sir, we even asked permission to hold
ourselves a religious worship meeting, so to say,
which was absolutely forbidden.)
Q. Did some Japanese general come to that
camp when you first arrived ?
A. We had several high ranking visitors.
Q. Do you remember one general in particular
€oming to the camp after Tsuneishi's first speech?
A. Yes.
Q. Do you know who that general was ?
A. I am not quite sure about his name, but it
was not Arusi, it was Asaka, something like that.
I am not sure about the name.
Q. Do you know the Japanese name given to
Bunka Camp? A. No, sir.
Q. Was there any sign in Japanese outside of
the camp, indicating that it was some kind of in-
stitute ? A. No, sir.
Q. Did you ever ask the intervention of any
neutral government to assist the prisoners of war
in that camp ?
A. We expressed several times the wish to see
a representative from a neutral country.
Q. Were you given that privilege ?
Mr. DeWolfe: I object to that as incompetent,
irrelevant and immaterial and not relevant to the
issues in this case, the Zero Hour program.
500 Iva Ikuko Toguri D^ Aquino
(Deposition of Nicolaas Schenk.)
The Court: The objection is sustained.
(A. Never, sir.) [25]
Q. You mentioned the name Yoshi. What did
he do there ^
Mr. DeWolfe: I object to that as incompetent,
irrelevant and immaterial, having nothing to do
with the Zero Hour program.
The Court: Objection sustained.
(A. He was a young fellow, yomig Japanese who
spoke rather fluent English, I should say, Ameri-
can, who told that he had been in America to buy
scrap iron. He was attached to our camp as a kind
of a spy and after some time being in our camp he
told us: ^^You fellows better not talk about any-
thing in my presence which could do harm to you
because after all it is my job, do you understand"?"
And we understood.)
Q. Did you ever report Tsuneishi to your gov-
ernment after the war %
Mr. DeWolfe: I object to that as immaterial
and incompetent.
The Court: Objection sustained.
(A. I reported him to my government. Major
Tsuneishi, Hamamoto, Uno, and Ikeda, as war
criminals.)
Mr. DeWolfe : I do not offer the cross examina-
tion. If your Honor wishes me to state the Gov-
ernment's position with reference to the applica-
bility of rule 15, Federal Eules of Criminal
Procedure, subdivision e, on that matter, I will.
vs. United States of America 501
(Deposition of Nicolaas Schenk.)
The Court: I am not familiar with it. What
is if?
Mr. DeWolfe: I just do not offer the cross ex-
amination. Apparently the new criminal rules for
the first time have a specific provision with refer-
ence to the taking of depositions, as your Honor
is well aware, and there are two pertinent parts
with reference to the matter I am now speaking
about. Rule 15, subdivision e at the top says :
^'At the trial or upon any hearing, a part or all
of the deposition, so far as otherwise admissible
under the rules of evidence, may be used if it
appears: "
and then there are certain contingencies which must
occur :
^^The witness is not available. The witness must
be dead or outside [26] the jurisdiction of the
United States.''
Later on at the end of the rule there appears
the following :
''If only a part of a deposition is offered in evi-
dence by a party, an adverse party may require
him to offer all of it which is relevant to the part
offered and any party may offer other parts."
It is to some extent at least, similar to companion
provisions with reference to that matter as to the
use of parts of a deposition by parties litigant be-
fore a United States court as mentioned in the
Federal Rules of Civil Procedure. Of course, we all
know that depositions for a defendant were allow-
502 Iva Ikuko Toguri V Aquino
(Deposition of Mcolaas Schenk.)
able under certain circumstances prior to the pro-
mulgation of these Federal Rules of Criminal
Procedure, but now the rules with reference to the
use and the taking of depositions in a criminal
proceeding pending in a United States Court have
been crystallized, set down in writing, and ap-
proved by the Supreme Court of the United States,
and I suppose they have the force and effect of
statute and law, and my impression of them is that
either party can offer a part of a deposition. I
therefore do not offer the cross-examination of this
witness.
The Court: Proceed.
Mr. Collins : Now if your Honor please, the de-
fendant wishes to introduce the cross-examination
of the witness into evidence, together with exhibits
that were introduced into the deposition by stipu-
lation, and attached to the deposition by counsel
for the prosecution, Mr. Storey; and in addition
to that, we desire to offer in the redirect examina-
tion by Mr. Tamba and the recross-examination by
Mr. Storey.
The Court: I have never run into this situation
before.
Mr. DeWolf e : I have never, either, sir.
Mr. Collins: Neither have we, if your Honor
please, but here is a deposition which is taken
abroad under rather peculiar and extraordinary
circumstances, and it was the only method by which
the defendant was able to obtain the testimony of
vs. United States of America 503
(Deposition of Mcolaas Schenk.)
witnesses abroad. I may state that the matters of
cross-examination are directly [27] relevant and
pertinent to the vital issues that are involved in this
case, and since a portion of the deposition, that is,
the direct examination, has been offered, if counsel
for the prosecution is not going to read the cross-
examination and the redirect and recross-examina-
tion, then the defendant insists upon the right to
having this matter introduced into evidence, the
testimony together with the exhibits themselves,
which were offered merely for identification, but
which were introduced in evidence by counsel for
the prosecution in connection with the taking of
this deposition.
Mr. DeWolf e : Could I make one more statement
in reference to procedure? The government takes
the position that Mr. Collins has the right to offer
this other part, subject to any objections which the
United States seeks to interpose before your
Honor's ruling on that. On that matter the rules
are apparently such as to give him the right to do
that.
The Court: Proceed.
Mr. Collins: Yes. This is the cross-examination
of the witness Nicolaas Schenk, by Mr. Storey;
reading :
(Thereupon the reading of the cross-exami-
nation of the deposition of Nicolaas Schenk
was commenced, the questions being read by
Mr. Collins and the answers by Mr. Tamba.)
504 Iva Ikuko Toguri V Aquino
(Deposition of Mcolaas Schenk.)
Q. Did your government institute an investiga-
tion as a result of your reporting these men as war
criminals'? A. Never did, sir.
Mr DeWolfe: Object to that as being incom-
petent, irrelevant and immaterial.
Mr. Collins: That is cross-examination, if your
Honor please, by the attorney for the prosecution,
and.it seems to me that under the circumstances
they would be barred from voicing objections.
Mr. DeWolfe: Well, it is with reference to a
matter that has gone out on direct, sir, in the case
in chief, gone out. [28]
The Court: Read the question again.
Mr. Collins: Did your government institute an
investigation as a result of your reporting these
men as w^ar criminals?
The Court: The objection will be sustained.
Q. Were these men ever tried as war criminals?
Mr. DeWolfe: I object to that as being incom-
petent, irrelevant and immaterial.
The Court: The objection will be sustained.
(A. No, sir.)
Q. Approximately how many Allied prisoners
were in Japanese custody at the time you were
selected for radio work?
Mr. DeWolfe: I object to that as incompetent,
immaterial and irrelevant.
The Court: Radio work?
Mr. Collins: Yes.
The Court: On the Zero Hour?
vs. United States of America 505
(Deposition of Nicolaas Schenk.)
Mr. Collins: Well, it doesn't specify that it was
on the Zero Hour.
The Court: The objection will be sustained.
(A. When w^e were brought to Omori we were
gathered with about sixty people.)
Q. Do you have any idea how many allied pris-
oners of war w^ere altogether in the custody of the
Japanese to work for the radio*?
Mr. De Wolfe: Object to that as incompetent,
immaterial and irrelevant.
Mr. Collins: It is preliminary, if nothing else.
The Court : Unless it is connected with the Zero
Hour, I will sustain the objection.
Mr. Collins: It doesn't so appear; it is a gen-
eral answer. But it does relate to this, if I may
direct your Honor's attention to it. The condi-
tions under which people were generally selected
for radio w^ork. And I think it w^ould pertain to
the very testimony that is connected — it is con-
nected with the testimony of Major Tsuneishi, w^ho
stated the circumstances under which people were
selected from various areas, to be brought to Japan
for that area. '[29]
The Court: Too general, the objection will be
sustained.
(A. All over Japan?)
Q. Yes.
Mr. DeWolfe: Object to that.
The Court: Objection sustained.
(A. No, sir.)
506 Iva Ikuko Toguri D^ Aquino
(Deposition of Nicolaas Schenk.)
Q. One hundred thousand'? One hundred fifty
thousand "?
Mr. De Wolfe: Object to that as incompetent,
immaterial and irrelevant and having nothing to
do with the Zero Hour program in Radio Tokyo.
The Court: Objection sustained.
(A. It could have been any number.)
Q. How many prisoners of war were at Camp
Bunka ?
Mr. De Wolfe: Object to that as incompetent,
immaterial and irrelevant.
The Court: Objection sustained. Proceed.
(A. In Bunka we had around twenty-five.)
Q. Twenty-five was the average while you were
there ?
Mr. De Wolfe: Object to that as incompetent,
immaterial and irrelevant.
The Court: Objection sustained.
Mr. Collins: The answer incorporated Major
Cousens and Captain Ince, if your Honor please.
The Court: I think there was some testimony
in the record about 12 or 15 or something.
Mr. Collins: It would increase to 25 or 27,
minus 2, I think.
The Court: Well, whether there was 25 or 50,
what relation has it to the issues involved in this
case ?
Mr. Collins: Has your Honor ruled?
The Court: The objection will be sustained.
(A. When we came we had only a few but we
vs. United States of America 507
(Deposition of Nicolaas Schenk.)
got twenty later. Cousens and Inee were brought
in, and later five other people were brought in, and
later one was brought in, which made it about
twenty-five.) [30]
Q. Did any prisoner of war refuse to do broad-
casting for the Japanese after he had received the
order to broadcast?
Mr. DeWolfe: Object to that as incompetent,
irrelevant, not related to the issues in this case.
The Court: Objection sustained.
Mr. Collins: It relates — I was going to point
out, if your Honor please, that it relates to' the ques-
tion of the orders that were given to these people
and the circumstances under which they were com-
pelled to broadcast.
The Court: What relation have those orders to
the issues involved here?
Mr. Collins: It has this relation, it relates di-
rectly to the orders given to Captain Ince and
Major Cousens, who w^ere detained at Bunka, who
were there ordered to broadcast by Major Tsuneishi
and by others.
The Court: On the Zero Hour?
Mr. Collins: That was on the Zero Hour, yes,
your Honor.
The Court: Is there anything there connect-
ing that up with the Zero Hour?
Mr. Collins: No, save and except the general
orders given to the prisoners of war at Bunka,
508 Iva Ikuko Toguri D' Aquino
(Deposition of Nicolaas Schenk.)
among whose numbers were Major Cousens and
Captain Ince, and as to what they must do.
The Court: Objection will be sustained.
(A. Yes, sir. Several times. It was not di-
rectly refused because of fear of dire punishment
by way of execution but by trying to bring up some
points which could dismiss a prisoner from broad-
casting. That one instance when Shattles told Uno :
^^I would rather get shot than broadcast this stuff/'
he was taken aside by Uno and had a severe talk
with him and he came to us crying and crying
''What shall I do? What shall I do?" and the
final thing that we thought and we told him that
no government would accept such a broadcast as
treason because of the fact that this was just too
obvious.) [31]
Q. Isn't it a fact that George Williams, a Brit-
ish subject, refused outright to do propaganda
broadcasts ?
Mr. De Wolfe: Objected to as incompetent, im-
material and irrelevant.
The Court: Objection sustained.
(A. It was not spoken of as broadcast. Wil-
liams refused to cooperate before w^e even knew
what was going to happen.)
Q. Was Williams killed as a result of that re-
fusal?
Mr. De Wolfe: Objected to as incompetent, im-
material and irrelevant.
vs. United States of America 509
(Deposition of Nicolaas Schenk.)
The Court: Same ruling, objection will be sus-
tained.
(A. Up to the end of the war, when I came to
Manila, I never knew^ nothing else but that Wil-
liams was killed. In Manila I heard he was sent
to another camp and held there.)
Q. Captain Kalbfleisch refused also later to do
broadcasting, did he not?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. I don't know whether it was a question of
refusal.)
Q. He was transferred from the camp?
Mr. DeWolfe: Objected to as immaterial.
The Court: Objection sustained.
(A. He w^as transferred suddenly and it was
told to me, or to us, rather, that it was because
of sabotage. I believe Uno accused him of writing
double meaning scripts.)
Q. Was he executed for this?
Mr. DeWolfe: Objected to as incompetent, im-
material and irrelevant.
The Court: The objection will be sustained.
(A. I did not know any better until I met him
in Manila, after the end of the war.)
Q. At the time you saw him after the war, he
was all right?
Mr. DeWolfe: I object to that as incompetent,
irrelevant and immaterial.
The Court: The objection will be sustained. [32]
510 Iva Ikuko Toguri V Aquino
(Deposition of Mcolaas Schenk.)
(A. He was, yes, sir. I wonder if it is of any
value if I add that the man's belongings were
standing in the camp for quite a number of weeks
and I personally asked Uno, just to find out what
happened to Kalbfleisch, isn't it necessary that we
send that stuff to the boy, after all he will need it,
and Uno said: ^^No, he will not need if This
gave me the absolute belief he was executed.)
Q. Was George Uno transferred from Camp
Bunka while you were there?
Mr. De Wolfe: Objected to as not related to the
issues involved in this case and incompetent, irrele-
vant and immaterial.
Mr. Collins : I may point out that the testimony
was that Uno was one of the watchers that was
sent to watch the Zero Hour program while Cou-
sens and Ince were on that program.
Mr. DeWolfe: Now they are asking, your
Honor, as I remember about what he did at Camp
Bunka and whether he was transferred from Camp
Bunka to some other place.
Mr. Collins: Yes, whether he was taken away
from the camp.
The Court: Whether he was or not has no rele-
vancy in this case. The objection will be sustained.
(A. Buddy Uno left the camp, I believe, in
1944, but I am not quite sure.)
Q. Are you aware of the fact that he was trans-
ferred from Camp Bunka because he mistreated
Naval Lt. Henshaw?
vs. United States of America 511
(Deposition of Nicolaas Schenk.)
Mr. De Wolfe: Object to that as irrelevant.
The Court: Objection sustained.
(A. No.)
Q. It was not well known he was relieved be-
cause he mistreated one of the prisoners of war.
Mr. De Wolfe: Object to that as irrelevant and
incompetent.
The Court: Objection sustained.
(A. No.)
Q. Was any other person connected with the
camp relieved because he slapped or mistreated the
prisoners of war, to your knowledge?
Mr. De Wolfe: Same objection.
The Court: Objection sustained.
(A. Not to my know^ledge.) [33]
Q. Who was the protecting power for the Al-
lied interests in Japan during the war?
Mr. De Wolfe: Object to that as irrelevant.
The Court: Who was that?
Mr. Collins: Protecting power for the Allied
interests in Japan.
The Court: Objection sustained.
(A. If I am not mistaken, the Swedish Lega-
tion acted as the representatives of the Nether-
lands Government and the Swiss Legation repre-
sented the American and English, I am not quite
sure.)
Q. Did you ever submit a formal request to
Major Tsuneishi, who was in charge of that camp.
512 Iva Ikuko Toguri D' Aquino
(Deposition of Nicolaas Schenk.)
to see a representative of the Swedish Govern-
ment"?
Mr. De Wolfe: Object to that as incompetent,
irrelevant.
The Court: What is the name of this witness
that is being examined ?
Mr. Collins: Schenk, Nicolass Schenk, Lieuten-
ant Nicolass Schenk.
The Court: Objection sustained.
Mr. DeWolfe: He is a Dutch prisoner of war,
I think.
(A. There was no such a possibility to submit
such a request.)
Q. Did you ever attempt to submit such a re-
quest to Tsuneishi?
Mr. DeWolfe: I object to that as not having
any bearing on the issues involved, incompetent.
The Court: Objection sustained.
(A. Yes.)
Q. Did you talk to Tsuneishi?
Mr. DeWolfe: Object to that as incompetent,
irrelevant.
The Court: Objection sustained.
(A. Never got the chance.)
Q. Did you ever talk to Tsuneishi at all?
Mr. DeWolfe: Same objection.
The Court : Same ruling.
(A. Never got the chance.) [34]
Q. Did you ever protest to Major Tsuneishi
about misappropriation of Red Cross parcels which
I
vs. United States of America 513
(Deposition of Nicolaas Schenk.)
were supposed to be distributed in the camp?
Mr. De Wolfe: Same objection.
The Court: Objection sustained.
(A. I protested to the interpreter — that means
to say protest is too strong an expression. I told
the interpreter that to my belief there were more
Red Cross packages across the way, and whether
he would be so kind as to call Major Tsuneishi's
attention to that?)
Q. Did you ever request through the interpreter
to have an interview with Major Tsuneishi?
Mr. DeWolfe: Objected to as irrelevant.
The Court: Objection sustained.
(A. These requests were always )
Q. Did you ever make such a request?
Mr. DeWolfe: Object to that as incompetent,
irrelevant.
The Court: Objection sustained.
(A. Oh, yes.)
Q. After you had made this request to have
the Red Cross packages distributed, were they dis-
tributed?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. No, sir.)
Q. They were not distributed at all after that
request was made?
Mr. DeWolfe: Same objection.
The Court: Same ruling. The objection will
b(^ sustained.
514 Iva Ikuko Toguri B' Aquino
(Deposition of Nicolaas Schenk.)
(A. They were distributed to us as a kind of
reward, but quite a while later.)
Q. What were the prisoners of war doing in
Camp Bunka?
Mr. DeWolfe: Object to that as incompetent,
irrelevant.
The Court: Objection sustained.
(A. You mean daily activity"?)
Q. No, what were you, all of you, doing there?
Mr. DeWolfe: Object to as incompetent, irrele-
vant.
The Court: Objection sustained.
(A. Well, we had to take care of the camp. I,
myself, of course, of the drawing of supplies and
preparing them, and the others had their own ac-
tivities, such as cleaning up the place, making the
baths for the Japanese.)
Q. Were these prisoners of war broadcasting
propaganda for the Japanese Government?
Mr. DeWolfe: Object to it as immaterial.
The Court: Objection sustained.
(A. All of us were connected in one way or an-
other with the broadcast.)
Q. And the scripts were written by the pris-
oners of war and were designed to be propaganda
against the Allied forces?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant.
The Court: Unless it is connected up with the
Zero Hour, the objection will have to be sustained.
vs. United States of America 515
(Deposition of Nicolaas Schenk.)
All these questions that are being propounded, the
jury must regard as not evidence, and not to be
considered for any purpose in this case.
(A. We got a certain subject and we got point
out what w^e should write about.)
Mr. Collins : What is the next line, Mr. Tamba ?
Mr. Tamba : I think it is 14, unless I got lost.
Q. And the scripts were written by the pris-
oners of war and were designed to be propaganda
against the Allied forces?
Mr. Collins: Did I just read that?
Mr. DeWolfe: Objected to as irrelevant and
immaterial.
The Court: I sustained the objection to that,
unless it is connected up with the Zero Hour.
Mr. Collins: Well, we are endeavoring to con-
nect that, if your Honor please, and we think that
there is already testimony in the record
The Court: Well, it may or may not develop.
Unless they are connected up, it is clearly my duty
to sustain the objections to them. [36]
Q. But it was propaganda?
Mr. DeWolfe: Object to that as incompetent, ir-
relevant.
The Court: Objection sustained.
(A. It was always more or less propaganda.)
Q. You have testified that the prisoners of war
were putting a double meaning into their broad-
casts ?
Mr. DeWolfe: Same objection.
516 Iva Ikuko Toguri D 'Aquino
(Deposition of Nicolaas Schenk.)
The Court: What broadcasts?
Mr. Collins: This related just generally to the
prisoner of war broadcasts, to all the prisoner of
war broadcasts, not to any one particular one, but
to all prisoner of war broadcasts.
Mr. De Wolfe: That is why it is objectionable,
sir.
The Court: The objection will have to be sus-
tained.
Mr. Collins: I am pointing out, if your Honor
please, that if the double meanings are being put
into all the prisoner of war broadcasts, pursuant to
an agreement or understanding of the prisoners of
war, then it includes also the Zero Hour and such
other programs as the prisoners of war were com-
pelled to broadcast on.
The Court: The objection will have to be sus-
tained.
(A. Yes.)
Q. Give us all the examples, if you can remem-
ber them, of scripts with double meanings. You
need not repeat the one you gave to Mr. Tamba
with regard to the rice table.
Mr. De Wolfe: Object to it, incompetent, irrele-
vant.
The Court: Objection sustained.
(A. I think it is putting quite a strain on a
man to recall that, but for instance I recall that
in the scripts that were supposed to be prepared
by Henshaw and Cousens and others, that we tried
vs. United States of America 517
(Deposition of Nicolaas Schenk.)
to get across how exactly the prisoners of war were
treated by the Japanese; what happened to the
Red Cross supplies, and what, in general, the be-
haviour of the Japanese was.)
Q. Tell us how you got that into the scripts?
Mr. De Wolfe: Object to that as incompetent,
irrelevant.
The Court: Objection sustained. [37]
(A. It is impossible for me to recall that ex-
actly. I cannot tell you exactly that the script
contained that and that.)
Q. In other words, the only example you can
remember is the one you gave Mr. Tamba?
Mr. De Wolfe: Same objection your Honor.
The Court: Objection sustained.
(A. Yes.)
Q. You have testified that you w^ere in charge
of the kitchen at Camp Bunka for a while. Were
you relieved of that duty later?
Mr. DeWolfe: Same objection, sir.
The Court: Objection sustained.
(A. Yes, sir.)
Q. What was the reason given for relieving you
from this duty*?
Mr. DeWolfe: Same objection, sir.
The Court: Same ruling.
(A. Because they caught a couple of my boys
stealing. We were on a stealing party to get food.)
Q. Did any of the other prisoners of war ever
accuse you of misappropriating food in the kitchen ?
518 Iva Ikuko Toguri D' Aquino
(Deposition of Nicolaas Schenk.)
Mr. De Wolfe: Object to that as hearsay, call-
ing for a conclusion, incompetent, immaterial and
irrelevant.
The Court: Objection sustained.
(A. You mean the prisoners of war accusing
me?)
Q. Yes.
Mr. DeWolfe: Object to that.
The Court: Objection sustained.
(A. No, sir.)
Q. Do you recall an incident that happened on
February 24, 1945, when there was quite an inves-
tigation of activities in the kitchen?
Mr. DeWolfe: Object to that as incompetent,
irrelevant and immaterial.
The Court: Objection sustained.
(A. You mean by the Japanese?)
Q. Yes, when the American prisoners, the other
prisoners of war accused you of taking food out of
the kitchen?
Mr. DeWolfe: Object to that as immaterial and
incompetent. [38]
The Court: Objection sustained.
(A. Never from the American prisoners of war.)
Q. From any prisoners of war?
Mr. De Wolfe: The same objection, sir.
The Court: Same ruling.
(A. No.)
Q. Can you recall the date that you were re-
lieved from your duties in the kitchen?
I
vs. United States of America 519
(Deposition of Nicolaas Schenk.)
Mr. De Wolfe: Objected to as immaterial.
The Court: Objection sustained.
(A. That, if I am not mistaken, was in '45,
somewhere around the beginning of 1945.)
Q. You have mentioned in these orders that were
given to the prisoners of war at the camp that if the
prisoners of war did not cooperate with the pro-
gram they would be executed. Was the word ^^ exe-
cuted" used or, that if you did not work, your life
would not be guaranteed?
Mr. De Wolfe: Objected to as incompetent,
immaterial and irrelevant.
The Court: Objection sustained.
(A. They used the expression ^^your life would
not be guaranteed.")
Q. In other words, they did not say you would
be executed?
Mr. De Wolfe: Same objection, your Honor.
The Court: Objection sustained.
(A. I asked Uno for their interpretation of sev-
eral Japanese words and he told me that I had to
understand the meaning of ^^ nothing is guaranteed"
and ^^your life is not guaranteed" in the way the
Japanese regarded the prisoners of war and later
he explained that in detail to the whole assembly
of prisoners of war that prisoners of war was an
unknown thing to Japanese, and, therefore, the
prisoners of war were called by the name of ^^horyo"
which also, according to him, meant to express the
lowest type of criminal. [39]
520 Ivalkuko Toguri D' Aquino
(Deposition of Nicolaas Schenk.)
Q. Did you know the literal translation of the
orders given by superiors, given at Camp Bunka?
Mr. De Wolfe : Answer it.
A. No, sir. \
Q. Whenever you were given an official order,
was it ever interpreted to the prisoners of war that
they would be executed if they did not cooperate.
A. I got that impression.
Mr. De Wolfe: Objected to as incompetent, ir-
relevant.
The Court: What was the answer, he got that
impression %
Mr. Tamba : He got that impression.
The Court : The objection will be sustained, and
let it go out and let the jury disregard it.
Q. Did they say thaf?
Mr. De Wolfe: Object to that as hearsay, in-
competent, irrelevant and immaterial, has nothing
to do with the Zero Hour, as this witness has testi-
fied he didn't participate in the Zero Hour, didn't
know anything about it.
The Court: Objection sustained.
(A. No, sir, not in so many words.)
Q. You have testified' that on the occasions you
saw Major Tsuneishi, he was always in uniform and
w^as wearing a sword. Was the usual uniform of
the Japanese officer of field rank, the carrying of
a sword?
Mr. De Wolfe: I object to that as incompetent,
immaterial and irrelevant.
i
vs. United States of America 521
(Deposition of Nicolaas Schenk.)
The Court: Objection sustained.
(A. I don't know, sir.)
Q. Was anyone ever killed in Camp Bunka for
not carrying out orders in Camp Bunka'?
Mr. De Wolfe : Objected to as incompetent.
The Court : Objection sustained.
(A. No, sir.)
Q. Was Major Tsuneishi ever present when you
saw any of the prisoners of war at Camp Bunka
being mistreated? [40]
Mr. De Wolfe : You may answer if you want.
A. I do not recall clearly such an occasion.
Q. What is your answer to my question?
A. No, sir.
Q. Did you know Miss Toguri at all during the
time you were working at the radio station ?
A. I know quite a few of the girls, but not by
name, just nicknames, like Miss Toguri was called
and known by the name ^^Anne," and so were all
the other girls, I believe. I believe I saw her a
couple of tiijies at the studio around there.
Q. Did you ever see Miss Toguri broadcast?
A. No, sir.
Q. Did you ever hear one of her broadcasts?
A. No, sir.
Q. What time did your program go on the air
when you were broadcasting?
Mr. DeWolfe: Will you read that question
again ?
Q. (By Mr. Collins) : What time did your pro-
gram go on the air when you were broadcasting?
522 Iva Ikuko Toguri I) 'Aquino
(Deposition of Mcolaas Schenk.)
Mr. De Wolfe: Object to that as immaterial, it
is not the Zero Hour program.
The Court: Objection sustained.
(A. Our program went on the air, I believe, be-
tween 12 and 1 :00.)
Q. What time did the Zero Hour go on the air?
A. Some time in the afternoon, some time
around four or five o'clock.
Q. Did you remain at the studio — at the radio
station after you finished broadcasting ?
A. We remained for about half an hour, some-
times an hour, and then we went. It all depended
on whether our escort was there.
Q. Were you ever present at the radio station as
late a^ six or seven o'clock?
A. I, myself, never.
Q. Have you seen the defendant since the war,
Miss Toguri? A. No. [41]
Q. In other words, the only times you can ever
remember seeing her are the two or three times you
have testified to here? A. Yes.
Q. At any time since the end of the war, have
you contacted any people in an effort to prepare
the evidence for Miss Toguri 's defense?
A. No, sir. May I know a little bit more about
it? I say, no, but about a few weeks ago I got a
letter from the lawyers firm Fred Collins in San
Francisco, I believe, asking me if I can give answer
to certain questions as to how her employment arose.
vs. United States of America 523
(Deposition of Nicolaas Schenk.)
So and so on. Later I was called by Mr. Tamba.
That is the only two occasions.
Q. Since the war you have never approached
any persons who were formerly connected with the
radio station in an effort to prepare a defense for
Miss Toguri? A. No, sir.
Q. Do you know a person by the name of Lilly
Ghevenian ? A. Lillian ?
Q. Do you recall writing her a letter suggesting
to get people together and prepare a defense for
Miss Toguri? A. Yes.
Q. Then the answer you gave me a little while
ago is not true ?
A. I wanted to have some more information
on it.
Q. What did you say in that letter?
A. I don't recall but I got a letter from the
lawyer and I recalled that after the war we had
an investigation here about Tokyo Rose, they called
this girl, and I saw the picture of the girl in the
new^spaper and I recalled that face as having seen
once or maybe twice. I am pretty strong in re-
membering faces, and I immediately connected this
girl with the girl I knew at that time as Ann. I
knew from Cousens that that girl had been of great
help to him, with the result that I tried to get —
recollect everything, and later when I got that letter
from the lawyers' firm, that immediately remem-
bered that girl working there continually in Radio
Tokyo [42] and she must be known by some other
524 Iva Ikuko Toguri D' Aquino
(Deposition of Mcolaas Schenk.)
people whom I knew, like Lillian and Jane Sagoyan.
I knew just about the address from Jean Sagoyan
and I thought I better write that a girl a note so
as the lawyers could get in touch with them, and if
she would be of any value to use it. I don't re-
member what I wrote to that girl.
(During the reading of the aforesaid deposi-
tion, the following occurred:)
Mr. Collins: And then questions by Mr. Tamba.
This would be redirect.
The Court: Will we be able to conclude?
Mr. Collins : It is about six or seven pages, your
Honor.
The Court: The jurors may be excused until
2:00.
(Thereupon a recess was taken until 2:00
p.m. this date.)
Mr. Tamba: Line 3, page 26, Mr. Collins.
Mr. Collins: ''Mr. Tamba: I demand that if
you have a letter written by this witness, that he
be shown it before he be requested to testify as to
what he wrote in it."
Mr. DeWolfe: I have not any such letter now
in our possession. I have never seen it that I re-
call, if the demand is renewed.
Mr. Collins: I assume that the letter was not
produced. The letter was ignored. You can see
that from the nature of the question.
Q. You have testified previously that you saw
vs. United States of America 525
(Deposition of Mcolaas Schenk.)
that girl once or twice, and that you did not know
what she was doing at the radio station?
A. Well, we knew from all the Nisei girls and
the Nisei boys that they were broadcasting.
Q. Why were you so anxious to help someone
who collaborated with the Japanese government
without knowing more about it?
Mr. De Wolfe: I will object to that as incom-
petent.
The Court: Objection sustained.
(A. Now we come to a very critical point. I
have suffered quite a bit from this war and I know
that all these Nisei boys and Nisei girls here in
Japan, whether they come out here of their own
free will, or forced to come back, did suffer quite a
bit and it is not up to me to say whether the person
has committed treason or not. Treason to me is
when a person does something for gain, to get
something out of it for personal benefit or out of
a belief. While I personally did not believe that
anybody, a Nisei boy or Nisei girl working in Radio
Tokyo at that time, which the Japanese regarded
as neither fish nor fowl, would be regarded as trea-
son— to commit treason.
Q. Do you know whether or not Miss Toguri
was paid at Radio Tokyo?
A. I do not care what she was paid.
Q. In other words, you are willing to defend
her without knowing more than that?
Mr. De Wolfe: I object to that. Your Honor.
526 Ivalkuko Toguri D^Aquino
(Deposition of Mcolaas Schenk.)
The Court: Objection sustained.
A. I would be willing to defend her only on the
fact already that she helped the prisoners of war
by giving information or anything else.
Q. Did you mention that trip to the United
States in this letter to these people that they would
help with the defense ?
Mr. De Wolfe: I object to that as incompetent.
The Court: Objection sustained.
Mr. Tamba: I again demand that if counsel
has a letter written by this witness that it be shown
to him before he is requested to give any further
testimony as to the contents of such letter.
(Letter dated Tokyo, 24 February, 1949, ad-
dressed: ^^Dear Lill and Jenny" was shown to
witness by Mr. Storey.)
(A. Yes.)
Q. How did you propose to arrange this trip to
the United States for them?
Mr. De Wolfe: I object to that as incompetent
and immaterial.
The Court: Objection sustained.
(A. I am willing to give them myself some few
hundred dollars. [44] This girl Jenny Sagoyan was
so good to my fellow-prisoner, to one of my mates,
and did so much to keep him alive, arid I am willing
to pay a certain amount of money to get that girl
to the States.)
Q. In other words, you are willing to go to any
effort to get that girl to the United States?
vs. United States of America 527
(Deposition of Nicolaas Schenk.)
Mr. De Wolfe: I object to that as incompetent.
The Court: Objection sustained.
(A. No, not to any effort, but I certainly feel
this is a part of my duty to help at least that girl
after what she has done, even if it has not been
done to myself. During that time we regarded our-
selves as so close together, we went through so
many things, that it was no difference whether it
was for me or anyone else, even Mark Streiter.)
^^Mr. Story: The prosecution would like to offer
this letter as Government's Exhibit ^1' in Schenk
deposition.
Mr. Tamba: No objection.''
Mr. Tamba: The letter is appended to the dep-
osition, but I understand counsel has objected.
Mr. DeWolfe: I am not offering any letter.
Mr. Collins: It was a letter which the prosecu-
tion offered. Is it attached?
Mr. Tamba: It is attached to the original.
Mr. Collins: The letter which was attached as
Prosecution's Exhibit 1 to this deposition reads as
follows :
Mr. DeWolfe: I will object to it. We did not
offer that exhibit, and if he offers it as part of the
cross-examination, we will object to it. We did not
offer any of the cross-examination. It is not proper.
Objection was sustained to the direct examination.
I take the position I am not offering any cross-
examination.
The Court: Submitted?
528 Iva Ikuko Toguri D' Aquino
(Deposition of Nicolaas Schenk.)
Mr. Collins: Yes.
The Court: Now for the purpose of the record,
you may indicate the purpose of this offer [44-A]
Mr. Collins : The purpose of this offer is to show
that a letter dated Tokyo, 24 February, 1949, ad-
dressed to Lt. Nicolaas Schenk, custodian officer.
Netherlands Legation, General Headquarters, APO
500, care of Postmaster, San Francisco, California,
and addressed to ^^Dear Lil and Ginny," and
signed by
The Court: The best approach to that would be
to indicate in what manner this letter should go in
evidence, on what theory and what relation has it
to any issue in this case.
Mr. Collins: It relates to this, if Your Honor
please, this request for an appointment to com-
municate information in the story of Radio Tokyo
and to ask both of these persons, apparently Lil and
Ginny, if they would go to the United States and
also if they would contact all girls and boys who
are acquainted with ^^ Tokyo Rose, and tell them to
communicate with the writer as soon as possible.
The Court: That has no place in this record.
The objection will be sustained to it.
Mr. Collins: What line were you on?
Mr. Tamba: We are on page 28, line 1, now.
Mr. Collins: Let the record show that on page
27 Mr. Tamba stated, after Mr. Storey offered Gov-
ernment's Exhibit 1 attached to that deposition,
that he had no objection. Now redirect examination
by Mr. Tamba.
vs. United States of America 529
(Deposition of Nicolaas Schenk.)
Q. You feel quite keenly about the experiences
you endured during the war?
Mr. DeWolfe: I object to that as not proper
redirect. Cross-examination was not offered by the
United States.
The Court: Objection sustained.
(A. Yes, sir.)
Q. And you know that the girl you knew as
Ann did what she could for the prisoners of war?
Mr. DeWolfe: I object to that as leading, not
proper redirect examination, incompetent, no cross-
examination by the Government.
The Court: Clearly calling for the conclusion
of the witness. The objection will be sustained.
(A. I am absolutely convinced that every Nisei
girl and every Msei boy, if they had the opportu-
nity, would have helped us.
Q. Do you remember the incident of the blanket
being brought to Camp Bunka?
Mr. Tamba: Any objection to that?
Mr. DeWolfe : No.
A. Yes.
Q. Do you know where it came from?
A. I wouldn't be able to say it came from Ann,
Lillian or anyone else, but if I bring it in connection
to a person who got it, and whom that person knew
and was told to get in contact with, that I am
almost convinced that it was Ann's.
Q. You know the blanket came to the camp?
A. Yes.
530 Iva Ikuko Toguri I) 'Aquino
(Deposition of Nicolaas Schenk.)
Q. You also know about — you also no doubt
know, Lt. Schenk, that information concerning
Allied war news was supplied to Major Cousens.
A. I have said
Q. You also know, Lt. Schenk, that sometimes
food, items of food came to the camp?
A. Yes, sir.
Q. And it is your belief that it came from Ann
and other Niseis? A. Yes, sir.
Mr. DeWolfe: That is calling for a conclusion.
The Court: His belief may go out. The objec-
tion is sustained.
Q. And you feel grateful for that?
Mr. DeWolfe: I object to that because he has
testified only as to his belief.
The Court: Objection sustained.
(A. Yes.)
Q. And that is the reason you wrote this letter?
Mr. DeWolfe: I object to that for the same
reason.
The Court: Objection sustained.
(A. Exactly.) [46]
Q. You saw me twice prior to today, Lt. Schenk?
A. Yes, sir.
Q. And I asked you if you were willing to go
to the States to testify? A. Yes, sir.
Q. And you said you would be willing to go
there? A. Yes, sir.
Q. I did not want to go into this, but since Mr.
Storey went a little further, was the subject of
cannibalism discussed among you prisoners?
vs. United States of America 531
(Deposition of Nicolaas Schenk.)
Mr. De Wolfe: I object to that as incompetent, .
improper redirect.
The Court: Objection sustained.
(A. Yes.)
Q. Tell us about it.
Mr. DeWolfe: I object to that as incompetent
and immaterial.
The Court: Same ruling.
(A. We were sitting on our bunks one night,
and a few of us had been punished by not eating
and I was able to steal a little bit out of the Jap-
anese ration and brought it to the people who had
been punished. I don't remember the names, so
after a while we were getting into the discussion
^^ suppose you and I would sit in an open boat with
nothing around us. We would be without food, so
what would we do. You would watch me, expecting
that I would kill you, and 3^ou say you would do
the same to me." Whatever are their impressions,
and we discussed that problem, that subject from
all sides with the absolute belief that if it came
that far that each and everyone of us would kill the
other not so much for protection but to keep the
belly full.)
Q. When I interviewed you, you never gave me
the name of Lillian Sagoyan? A. No, sir.
Q. I talked with you about what you knew about
the girls'? A. That is correct, sir. [47]
Q. About this bath you mentioned to me, do you
know the name of the man who was repeatedly
532 Iva Ikuko Toguri D^ Aquino
(Deposition of Mcolaas Schenk.)
beaten for not taking care of the Japanese bath,
who was he"?
Mr. De Wolfe: I object to that as incompetent,
irrelevant and immaterial.
The Court: The objection is sustained.
(A. Larry Quilly.)
Q. Who beat him?
Mr. De Wolfe: I object to that as incompetent,
irrelevant and immaterial.
The Court: The objection is sustained.
(A. Hamamoto and the sergeant of the Kempei-
tai.)
Q. Was that done frequently?
Mr. DeWolfe: Same objection to it.
The Court: Same ruling.
(A, Practically every day.)
Q. When Uno leff the camp, did he make a
speech and do you remember the contents or the
*tone, or the general import of that speech?
Mr. DeWolfe: I object to that as not bearing on
any issue in the case.
The Court: Objection sustained.
(A. We held a kind of a bull session in which
he said that Major Cousens was that kind of a
character; that Ince was a poker player; that Ince
had to be very careful because the Japanese prob-
ably could — he meant to say something of the war,
that the time would not be far off when the Jap-
anese would stand from Ince just so much; that
Henshaw he regarded as a young fellow with ca-
vs. United States of America 533
(Deposition of Nicolaas Schenk.)
pacities but under the wrong leadership and by
leadership he meant Ince, as well as Cousens, and
he gave the description of everybody of us and left
us more or less in the belief that he was going out
to die for his country if it came so far because he
was a Japanese and he was very proud of it and I
believe he told us also what his brother had told him
when he left.) [48]
Q. To whom did you ask — whom did you ask for
the privilege to see the Swedish Legation, if you
recall ?
Mr. De Wolfe: I object to that as irrelevant.
The Court: Objection sustained.
(A. I am quite sure — I believe it was Osaki
whom I asked once to see the Swedish representa-
tive, or the Swiss representative.)
Q. Did you come here voluntarily this morning ?
A. Yes, sir.
Q. To testify in behalf of Miss Toguri?
A. Yes.
Mr. DeWolfe: The recross-examination is not
offered by the Government.
Mr Collins: I will put the questions on re-
cross.
Recross-Examination
By Mr. Storey :
Q. Did you ever see Miss Toguri at Camp
Bunka? A. No.
Q. Did Miss Toguri ever give you any food?
A. No.
Q. Did Miss Toguri ever give you any medicine ?
Mr. Tamba : I do not find an answer to that.
534 Iva Ikuko Toguri D' Aquino
(Deposition of Nicolaas Schenk.)
Mr. DeWolfe: I do not either.
Mr. Collins: Is that the end of it then?
Mr. Tamba: On the next page.
Q. Did she ever pass on any news to you?
A. No, sir, not to me.
Mr. Collins : Is that the conclusion ?
Mr. Tamba: Yes.
/s/ NICK SCHENK.
GOVERNMENT'S EXHIBIT '^I"
IN SCHENK DEPOSITION
Tokyo, 24 February 1949
Lt. Nick Schenk
Custodian Officer
Netherlands Legation
General Liaison, GHQ.
APO 500, c/o P.M.
San Francisco, Cal.
Dear Lill and Jenny
I would appreciate it very much if both of you
would give me an appointment as soon as possible.
The thing is I would like to have some additional
information in the old story of Radio-Tokyo, and if
possible I would like to have both of you getting
a change of going on a nice trip to the States.
I also would appreciate it if you could contact all
girls and boys who are acquanted with ^^Tokyo-
Rose" and tell them to call me as soon as possible.
The information I would like to have from them is
I
vs. United States of America 535
everything what can be of Value for the defense of
that girl. So nobody has to fear a thing as it is
for the benefit of all. Expect to receive your call
soon.
Yours truly,
/s/ NICK SCHENK.
/s/ THOMAS W. AINSWORTH,
American Vice Consul.
[American Consular Service Seal.]
Japan,
City of Tokyo,
American Consular Service — ss.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad, and upon o^der of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D 'Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
Tamba, counsel for the defendant Iva Ikuko Toguri
D 'Aquino, I examined Nicolaas Schenk, at my
536 Iva Ikuko Toguri D' Aquino
office in Room 335, Mitsui Main Bank Building,
Tokyo, Japan, on the seventh day of May, A.D.
1949, and that the said witness being to me per-
sonally known and known to me to be the same
person named and described in the interrogatories,
being by me first sworn to testify the truth, the
whole truth, and nothing but the truth in answer
to the several interrogatories and cross-interroga-
tories in the cause in which the aforesaid stipula-
tion, court order, and request for deposition issued,
his evidence was taken down and transcribed under
my direction by Mildred Matz, a stenographer, who
was by me first duly sworn truly and impartially to
take down in notes and faithfully transcribe the
testimony of the said witness Nicolaas Schenk, and
after having been read over and corrected by him,
was subscribed by him in my presence; and I
further certify that I am not counsel or kin to any
of the parties to this cause or in any manner in-
terested in the result thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this 19th day of
May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
Service No. 935 ; Tariff No. 38 ; No fee prescribed.
[Endorsed] : Filed May 23, 1949.
I
vs. United States of America 537
In the Southern Division of the United States
District Court for the Northern Division of
California
No. 31712 R
UNITED STATES OF AMERICA,
Plaintiff,
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OF TAMOTSU MURAYAMA
Deposition of Tamotsu Murayama, taken before
me, Thomas W. Ainsworth, Vice Consul of the
United States of America, in Mitsui Main Bank
Building, Room 335, in Tokyo, Japan, under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of the United States of America
vs. Iva Ikuko Toguri D 'Aquino, pending in the
Southern Division of the United States District
Court, for the Northern District of California, and
at issue between the United States of America vs.
Iva Ikuko Toguri D 'Aquino.
The plaintiff, appearing by Frank J. Hennessy,
United States District Attorney ; Thomas DeWolf e,
Special Assistant to the Attorney General, and Noel
Story, Special Assistant to the Attorney General,
and the defendant, appearing by Wayne N. Collins
and Theodore Tamba.
538 Iva Ikuko Toguri D' Aquino
The said interrogations and answers to the witness
thereto were taken stenographically by Mildred
Matz and were then transcribed by her under my
direction, and the said transcription being there-
after read over correctly to the said witness by me
and then signed by said witness in my presence.
It is Stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objections to the use of the
deposition, or any part of the deposition, by plain-
tiff, on the plaintiff's case in chief, shall be reserved
to the time of trial in this cause.
TAMOTSU MURAYAMA
of Tokyo, Japan, employed by Nippon Times, of
lawful age, being by me duly sw^orn, deposes and
says:
Direct Examination
By Mr. Tamba :
Q. Mr. Murayama, what is your business or oc-
cupation?
A. Reporter for the Nippon Times.
Q. Where were you born*?
A. I was born on December 24, 1905, in Seattle,
Washington.
Q. Have you lived in the United States?
A. Yes.
Q. For how long a period of time?
A. About twenty years altogether.
A
vs. United States of America 539
(Deposition of Tamotsu Murayama.)
Q. AVhere did you receive your education?
A. Most of it in San Francisco.
Q. What schools?
A. Lowell High School and Golden Gate Col-
lege.
Q. And Golden Gate College is a YMCA night
school in San Francisco? A. That's right.
Q. For how many years have you been a news-
paper man?
A. About twenty years. This is my twenty-first
year. [2*]
Q. Have you been in any foreign countries out-
side of the United States?
A. Yes. All over the world.
Q. Will you please tell us what countries you
visited.
A. Canada, Mexico, Panama, Peru, Chile, Ar-
gentina, Uruguay, Brazil, Great Britain, that is,
England, Germany, France, Soviet Eussia, Italy,
Egypt, Ceylon, China, Korea, Manchuria, that's
about all.
Q. That was following your occupation as a
newspaper man ? A. Yes, sir.
Q. You came to Japan, when?
A. 1939 was the last time.
Q. In what capacity, Mr. Murayama?
A. To take up my work with Tokyo AP office.
Q. You mean Associated Press?
A. Associated Press, right.
* Page numbering appearing at top of page of original
Reporter's Transcript.
540 Iva Ikuko Toguri D' Aquino
(Deposition of Tamotsu Murayama.)
Q. You were caught in Japan during the war, is
that correct? A. Right.
Q. In the United States, have you had occasion
to interview any people of prominence, in your
capacity as newspaper man? A. Yes.
Q. Who, may I ask?
A. I interviewed Presidents Roosevelt and
Hoover, Vice-President Garner.
Q. Any labor leaders of note ?
A. Many, including William Green, John Lewis.
Q. Were you ever active in any American politi-
cal campaigns? A. I was.
Q. In any particular city?
A. In San Francisco.
Q. In what capacity?
A. I was one of the campaign managers for
Mayor Rossi.
Q. Do you know a man by the name of Major
Tsuneishi?
The Court : I would like to inquire what, if any,
relation any of these questions and answers have
to any issue in this case.
Mr. Collins : I do not know. That is the last of
the questions apparently.
The Court: I hope it is. It has no place here.
Proceed.
Q. Do you know a man by the name of
Tsuneishi ? A. Yes.
Q. Do you remember Major Tsuneishi at the
Sanno Hotel in Tokyo? A. Yes.
vs. United States of America 541
(Deposition of Tamotsu Murayama.)
Q. What was the occasion'?
A. It was an occasion to get propaganda ma-
terial from American correspondents.
Q. Who was securing this propaganda material?
A. Major Tsuneishi.
Q. What happened at the Sanno Hotel on that
occasion ?
Mr. De Wolfe: I object to it as incompetent,
irrelevant and immaterial.
The Court: Objection sustained.
(A. The American correspondents were put in
separately in each room and they were ordered to
write some manuscript.)
Q. Who issued that order, if you know?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. Major Tsuneishi.)
Q. Were any Kempei-tai around those rooms, if
you know. If you don't say so?
Mr. DeWolfe: I object to it as immaterial. It
has nothing to do with Radio Tokyo.
The Court: Objection sustained.
(A. I don't know.)
Q. Did you see Major Tsuneishi slap any cor-
respondent? [3]
Mr. DeWolfe: Objected to as immaterial and
incompetent.
The Court: Objection sustained.
(A. He threatened Joe Dynan, now AP corre-
spondent in Paris.)
542 Iva Ikuko Toguri D^ Aquino
(Deposition of Tamotsu Murayama.)
Q. What did the threat consist of?
Mr. De Wolfe: Objected to as immaterial.
The Court: Same ruling.
(A. He was told to write an article but he re-
fused so sternly, so Tsuneishi slapped him. He
later complained he lost his tooth.)
Q. Who, when you say, he lost his tooth?
Mr. DeWolfe: Object to it as incompetent.
The Court: Objection sustained.
(A. Mr. Dynan.)
Q. Did you see Tsuneishi strike Dynan?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. I was standing at the end of the hall and
I saw him.)
Q. Was Tsuneishi dressed in uniform on that
occasion ? A. Civilian clothes.
Q. Now, when the war broke out you were work-
ing for the Associated Press office in Tokyo?
A. Yes.
Q. What did you next do in your occupation?
A. I was arrested for espionage suspect.
Q. How long were you held at that time?
A. I was released immediately with the condi-
tion that I couldn't go out of Tokyo without official
permission of Kempei-tai and metropolitan police
force.
Q. What occupation did you follow for your live-
lihood at that time?
A. Mr. Sellmyer of Transocean News Agency,
vs. United States of America 543
(Deposition of Tamotsu Murayama.)
which was the German news agency, gave me a job.
Q. Had the Associated Press office closed?
A. Yes, that is right.
Q. How long did you work for that news agency,
if you remember, approximately?
A. Until I became sick in 1943, that is, in the
fall of 1943.
Q. Anything unusual happen to you when you
were working at the [4] Transocean agency?
A. There was the Midway fiasco. A Kempei-tai
captain invited me for tea, and as I walked out I
was requested to step in a car and then driven down
to Kempei-tai headquarters.
Q. What happened at the Kempei-tai headquar-
ters when you got there ?
Mr. De Wolfe: Objected to as immaterial and
incompetent. It has nothing to do with the radio
station whatsoever.
The Court: Objection sustained.
(A. The moment I walked into Otani's room
he came up: ^^You are a spy. All Niseis are spy.
You tip off some naval activities to America." Then
he strike me down there.)
Q. How long were you in Otani's office?
Mr. De Wolfe: Same objection.
The Court: Same ruling.
(A. I'm kept there one whole day.)
Q. Were you officially released by them? By
the Kempei-tai?
Mr. DeWolfe: Same objection.
544 Iva Ikuko Toguri D' Aquino
(Deposition of Tamotsu Murayama.)
The Court: Objection sustained.
(A. Yes, with condition that I would not say
anything about Midway.)
Q. Now, eventually you became connected with
Camp Bunka? A. Yes.
Q. When, approximately"?
A. Probably in December, 1943.
Q. Incidentally, were the Niseis having a hard
time of it to exist in Japan during the war?
Mr. De Wolfe: I object to it as incompetent and
immaterial and calling for a conclusion; too gen-
eral.
The Court: Objection sustained.
(A. Yes, sir.)
Q. Did you assist other Nisei when it came to
living %
Mr. De Wolfe: I object to it as immaterial and
incompetent.
The Court: Objection sustained.
(A. I helped two Nisei boys and one Nisei
stranded family until I became sick.)
Q. In what capacity did you report to Camp
Bunka ? A. As an interpreter. [5]
Q. Who was in charge of that camp, if you
know?
A. Mr. Fujimura was the civilian figurehead and
Mr. Tsuneishi was the executive officer.
Q. But who had the say in what was done ?
A. Major Tsuneishi.
vs. United States of America 545
(Deposition of Tamotsu Murayama.)
Q. Incidentally, that was not called Camp Bunka
at the time?
A. It was known as Surugadai Gijitsu Kenk-
yosho.
Q. What is the American translation of that
word.
A. Surugadai, technically Institute for Research ;
Kenkyosho means to do some research work.
Q. Were there any prisoners of war at that
institute ? A. Twenty-four or five.
Q. What were those prisoners of war doing, if
you know?
Mr. De Wolfe : I object to that as immaterial and
incompetent.
The Court: Objection sustained.
(A. They were brought in to engage in Japanese
army war progaganda.)
Q. Did these prisoners of war voluntarily do
that work, if you know?
Mr. De Wolfe: Same objection.
The Court: Same ruling.
(A. No.)
Q. Why do you say that, Mr. Murayama?
Mr. DeWolfe: I object to that as incompetent.
The Court : Same ruling.
(A. First they were picked out by the Imperial
Headquarters out of a prisoner of war list and they
were brought in for this particular purpose.)
Q. What did these lists consist of, out of which
prisoners of war were chosen ?
546 Iva Ikuko Toguri D' Aquino
(Deposition of Tamotsu Murayama.)
Mr. De Wolfe: I object to it as immaterial.
The Court: Objection sustained.
(A. Names, rank, talents, education, family mem-
bers, and POW number.)
Q. Did you make any protest at the camp re-
garding the use of POWs for broadcasting pur-
poses? [6]
Mr. DeWolfe: Same objection, if the Court
please.
The Court: Objection sustained.
(A. I told Mr. Fujimura, civilian head of the
POW camp I thought that this kind of radio
broadcast by POW is nonsense.)
Q. What, if anything, did Mr. Fujimura do to
stop it?
Mr. DeWolfe: Objected to as irrelevant and in-
competent.
The Court: Objection sustained.
(A. And he agreed with me; then I submitted
a -copy of the international law regarding the treat-
ment of POWs )
Q. To whom did you submit that?
Mr. DeWolfe: Same objection, Your Honor.
The Court: Objection sustained.
(A. I submitted it to Mr. Fujimura.)
Q. Was that law ever called to Major Tsuneishi's
attention, if you know?
Mr. DeWolfe: I object to it as incompetent.
The Court: Objection sustained.
vs. United States of America 547
(Deposition of Tamotsu Murayama.)
(A. I think Mr. Fujimura did but Major Tsu-
neishi didn't pay any attention, I believe.)
Q. Do you remember an occasion on December
10, 1943, when Major Tsuneishi spoke with the
POWs through an interpreter? A. Yes.
Q. Tell us what was done?
Mr. DeWolfe: I object to that as incompetent,
irrelevant and immaterial, having nothing to do with
the issues.
The Court: Objection sustained.
(A. Major Tsuneishi said, in substance, ^'You
are ordered to cooperate with the Japanese army
to broadcast. If you fail to cooperate your life is
not guaranteed.)
Q. On that occasion did he ask any of the POWs
to step forward?
Mr. DeWolfe: Same objection, Your Honor.
The Court : Objection sustained.
(A. He then said: ^'If you refuse to cooperate,
step forward.") [7]
Q. Did any prisoner of war step forward ?
Mr. DeWolfe: Same objection, incompetent and
irrelevant.
The Court: Same ruling.
(A. One POW by the name of Williams, British
POW, stepped forward. I thing he stepped two
paces forward.)
Q. You were then in the courtyard when that
happened?
Mr. DeWolfe: Same objection.
548 Iva Ikuko Toguri D^ Aquino
(Deposition of Tamotsu Murayama.)
The Court: Objection sustained.
(A. I was there.)
Q. Who interpreted Mr. Tsuneishi's speech?
Mr. DeWolfe: Same objection.
The Court: Objection sustained. .
(A. Mr. Uno.)
Q. What happened to Williams?
Mr. DeWolfe: I object to that as incompetent
and irrelevant. The same matter has been gone
over before and sustained.
The Court: Objection sustained.
(A. Williams was taken over to the administra-
tion building. Then Tsuneishi said: ^^He must be
killed'' in the presence of Mr. Fujimura and I,
myself.)
Q. And he was removed from the -camp, is that
correct ?
Mr. DeWolfe: Same objection.
The Court: Objection sustained.
(A. That's right.)
Q. Were the prisoners of war led to believe that
Williams was executed?
Mr. DeWolfe: Objected to as irrelevant and in-
competent.
The Court: Objection sustained.
(A. When he was removed from the group,
POW group, the boys were trembling with fear.
No one could speak a word. Then they were given
the impression by the time he was removed over to
vs. United States of America 549
(Deposition of Tamotsu Murayama.)
the administration building — they thought he was
going to be executed.)
Q. Mr. Murayama, do you know an Australian
Major by the name of Charles Cousensi
A. Very well. [8]
Q. When did you fii^t see or meet Charles
Cousens regardless of date '^ I am talking about the
occasion. A. December, 1943.
Q. Where ^ At Bunka camp ?
A. No, around Radio Tokyo.
Q. Under what circumstan<3es did you meet him ?
A. I was at the radio station. Radio Tokyo.
Then I met him in one of the rooms of Radio Tokyo.
We had a meeting. I believe I saw him before that.
I don't recall the exact date.
Q. What happened in that room, if you know?
A. He was ordered to write some manuscript.
Q. Did you hear the order, or did you come in
after the order was given'?
A. I came in after the order was given.
Q. Did Major Cousens appear to be frightened,
if you know ?
Mr. De Wolfe: I object to that as calling for the
conclusion.
The Court: Objection sustained.
Mr. Collins : This is right within the time he was
on the Zero Hour, if your Honor please.
The Court: It calls for the opinion and conclu-
sion of the witness. Develop the facts.
(A. Very much.)
550 Iva Ikuko Toguri V Aquino
(Deposition of Tamotsu Murayama. )
Q. Describe his appearance.
A. He looked so pale with anger.
Q. Was he trembling, if you recall?
A. That I don't recall.
Q. Incidentally, another prisoner of war was re-
moved from Camp Bunka some time later?
Mr. De Wolfe: Object to that, irrelevant, incom-
petent.
The Court: Objection sustained.
(A. Yes.)
Q. And you were not there when he was re-
moved? [9]
Mr. De Wolfe: Same objection, sir.
The Court: Objection sustained.
(A. No.- I was not there.)
Q. Did you arrive shortly after his removal?
Mr. De Wolfe: Objected to as immaterial.
The Court: Objection sustained.
(A. I went there on the following morning.)
Q. Who gave you the first information -that
Kalbfleisch had been removed from the prisoner of
war camp?
Mr. De Wolfe: Object, incompetent, irrelevant
and immaterial.
The Court: Obje<3tion sustained.
(A. Several POWs gathered around me with
fearing looks on their faces, speaking in low voices :
*^ Kalbfleisch was taken away last night." Wait a
minute, I don't know, ^^last night" or ^^ yesterday."
vs. United States of America 551
(Deposition of Tamotsu Murayama.)
^^We are afraid he might be killed. Please try
whatever you can do.")
Q. What did you do then?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. I inquired of Uno if he could find out where
Kalbfleisch was taken. Then I learned he was taken
over to Shinagawa POW camp. He is charged with
disobedience, and every POW must be taught some
lesson. He might be executed.)
Q. Then what did you do ?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. I went to Prince Ri, Korean Prince, a Lieu-
tenant-General, Member of the Military Counsel.
I explained to him what happened so far and I
also explained the international law how POW
should be treated. Then he promised me he was
going to do whatever he can do.)
Q. Did you discuss with him the subject of com-
pelling prisoners of war to write script and to
broadcast ?
Mr. DeWolfe: Object to that as incompetent,
irrelevant.
The Court: The same objection will have to be
sustained.
(A. I explained to him about the radio propa-
ganda imposed upon [10] POWs. I told him such
kind of writing and radio broadcast is a joke. Then
552 Iva Ikuko Toguri D' Aquino
(Deposition of Tamotsu Murayama.)
he said: ^^It is in the hands of Lt. Gen. Arisue.''
He said: ^^He could interfere.")
Q. Was Major Tsuneishi directly responsible to
Gen. Arisue?
Mr. DeWolfe: Object to that, incompetent, ir-
relevant, immaterial.
The Court: Objection sustained.
(A. POW propaganda program was introduced
by Major Tsuneishi and General Arisue.)
Q. In other words, Arisue was Tsuneishi 's direct
superior?
Mr. DeWolfe: Same objection.
The Court : Same ruling.
(A. That's right.)
Q. And the prisoners of war thought Kalbfleisch
was executed?
Mr. DeWolfe: Objected to as incompetent, ir-
revelant.
The Court: Objection sustained.
(A. They continually believed Kalbfleisch was
executed.)
Q. Mr. Murayama, I show you a letter dated
August 12, 1947, signed by Edwin Kalbfleisch, Jr.
This is a copy of a letter which you handed to me,
and I ask you where did that copy come from ?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant, and imm^iterial.
Mr. Collins : The materiality will have to appear
from the letter itself, if your Honor please.
The Court: A letter?
\
vs. United States of America 553
(Deposition of Tamotsu Murayama. )
Mr. Collins: It is a letter, yes, that was to be
identified. It is introduced in evidence subsequently
in the deposition.
The Court: I will allow it; I will give you a
record on it.
Mr. Tamba : Do you want me to read the answer.
The Court : Read the answer.
(A. This letter came from Captain Edwin Kalb-
fleisch to Prince Ri after he found out he was
rescued w^ithout having been court martialed.)
The Court : Just a minute. Let that question and
answer go out, let the jury disregard it for any
purpose in this case. [11]
Q. You got that copy from Prince Ri?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Objection sustained.
(A. Yes.)
Mr. Tamba: '^I offer this letter in evidence as
defendant's exhibit '1' in Murayama deposition.''
Mr. DeWolfe: Objected to as incompetent, ir-
revelant, immaterial, not the best evidence, Kalb-
fleisch should appear as a witness in connection
Mr. Collins: May I read something else? Mr.
Storey, who was the attorney for the prosecution,
answered to the offer, ''No objection."
The Court: The objection will be sustained. Re-
gardless of what objection was made there or what-
ever may have happened there, the test under the
law is here that the court must rule whether this
554 Iva Ikuko Toguri D' Aquino
(Deposition of Tamotsu Murayama.)
testimony is admissible to go to the jury, and the
court is not bound by any matter that might have
taken place in relation to this deposition. The real
purpose of it is to present it here to the court, and
the same rule of evidence applies as though they
appeared here in court.
Mr. Collins : I am not quarreling, if your Honor
please, with that.
The Court: I wanted you to know my position,
so that it would be clear.
Mr. Collins: Yes. I merely point out that we
are in this situation, that counsel for the prosecu-
tion then present at the taking of the deposition
raised no objection whatsoever and so stated, to the
introduction of that letter into evidence upon the
offer by Mr. Tamba.
The Court : I am not bound by what the prosecu-
tion may or may not have done at that time and
place. [12]
Mr. Collins : I understand that, your Honor, but
your Honor is now making a ruling upon a present
objection.
Mr. DeWolf e : I have one statement to make on
that, if vour Honor wants to hear me. The record
in this case shows clearly, and the understanding
was unequivocal and clear, entered into in writing
between Mr. Collins, myself and Mr. Hennessey,
that all objections would be reserved to the time of
trial, and it was stated at the outset of each and
vs. United States of America 555
(Deposition of Tamotsu Murayama.)
every one of these depositions. There is no ques-
tion about that, sir.
Mr. Collins: I realize what the stipulation was
and what the Court was entered into. The only ques-
tion that then arises is that here, nevertheless, de-
spite the stipulation, Mr. Storey as counsel for the
prosecution consents to its introduction in evidence.
The Court : Well, the fact that he did, this court
is not bound by that.
Mr. Collins: Well, I am not trying to bind the
court by it, I am simply saying that we are caught
in this position.
The Court : I just want to clear it up so if I am
in error you have an opportunity to correct me and
so that you will have a record on it.
Mr. Collins: I would just like the record to show
that, despite the fact Mr. Storey consented to its
introduction in evidence, the prosecution attorneys
now^ voice an objection to it, and your Honor is
ruling upon that objection.
The Court: The objection will be sustained.
Mr. Collins : And on line 17, is that correct, Mr.
Tamba ?
Mr. Tamba: Yes.
Q. Did you hear repeated threats made to pris-
oners of war at Camp Bunka, that if they failed to
cooperate, their lives would not be guaranteed?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant.
The Court: Objection sustained.
556 Iva Ikuko Toguri D^ Aquino
(Deposition of Tamotsu Murayama.)
(A. Yes.) [13]
Q. Who made those threats?
Mr. De Wolfe: Object to that as incompetent,
irrelevant, immaterial.
The Court: The objection will be sustained.
(A. Major Tsuneishi told prisoners of war in
prisoners of war quarters, through Buddy Uno, as
his interpreter.)
Q. Who was Ikeda? Did a man by the name of
Ikeda work at Camp Bunka ?
Mr. DeWolfe: Go ahead.
A. Yes.
Q. Did you ever hear him tell the prisoners of
war the same thing 1 A. Yes.
Mr. DeWolfe: Objected to as incompetent, ir-
revelant.
The Court: Objection sustained.
Q. Let me ask you, what was the food condition
at Camp Bunka like, Mr. Muriyama?
Mr. DeWolfe : Objected to as not connected with
the issues of the case.
Mr. Collins : That relates directly to the question,
if your Honor please, why the defendant gave food
to the prisoners of war at Bunka.
The Court: Objection sustained.
(A. Food condition was terrible. That is, kao-
liang, that is a Manchurian product, and soya beans
were mixed in the rice and the shortage of salt,
veg(itables, and other vital foods was so acute, and
there was continuous sickness such as beri-beri, skin
vs. United States of America 557
(Deposition of Tamotsu Murayama.)
eruption, falling of hair. Those boys continually
complained to me so I took up the matter with the
civilian head, Mr. Fujimura, and finally I took it
over to Prince Ri and asked him to improve the
POW camp somehow, otherwise there would be
continuous sickness.)
Q. After your complaint to Prince Ri were con-
ditions improved somehow regarding food?
Mr. De Wolfe: Same objection, your Honor.
The Court: Same ruling. [14]
(A. I brought some food myself; brought in
some medicine and Mr. Fujimura and other civilians
tried to improve as much as we could, nevertheless
there was not much improvement, to my regret.)
Q. How about Red Cross packages? Were they
delivered to the prisoners of war?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant.
The Court: Objection sustained.
(A. I believe it was in 1944, early part of 1944,
Henshaw, approached me and explained that there
must be some Red Cross packages for the Allied
prisoners and if there is not they wanted me to make
a contact with the Swiss Diplomatic representative
in Tokyo.)
Q. Did you discuss that matter with Tsuneishi
or anybody?
Mr. DeWolfe: Same objection, if it please the
Court.
The Court: Objection sustained.
558 Iva Ikuko Toguri D' Aquino
(Deposition of Tamotsu Murayama.)
(A. I asked Mr. Fujimura to take up the mat-
ter immediately with Major Tsuneishi. Then some
Red Cross packages came to'Bunka Camp later.)
Q. Who brought them, do you know ^
Mr. DeWolfe: Objected to as irrevelant.
The Court: Objection sustained.
(A. I think they were brought by Uno and
Ikeda.)
Q. Did you do anything to afford the prisoners
of war hospital treatment?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant.
The Court: Objection sustained.
(A. Just a moment. In connection with the Red
Cross packages I would like to explain a little more.
They were brought over to Camp Bunka but they
were kept as a prize for the men accomplishing the
most work, instead of immediate distribution,
whereby I severely protested for this kind of prac-
tice. I said: ''These Red Cross packages belong
to the prisoners of war inasmuch as sent by the
Red Cross, and these packages should be delivered
immediately.")
Q. Was Camp Bunka a secret POW camp ?
Mr. DeWolfe: Objected to as incompetent, im-
material. [15]
The Court : Objection sustained.
(A. More or less.)
Q. Did anyone approach you and ask you to see
the Swiss Consul to see if conditions could be im-
proved ?
I
vs. United States of America 559
(Deposition of Tamotsu Murayama.)
Mr. De Wolfe: Objected to as incompetent, ir-
revelant, immaterial.
The Court: Objection sustained.
(A. Yes, I believe it was Major Cousens men-
tioned about the Swiss Consul.)
Q. Did you see the Swiss Consul?
Mr. De Wolfe: Same objection, if it please the
court.
The Court : Same ruling.
(A. I didn't but I took the matter up with Mr.
Fujimura and I also mentioned it to Prince Ri.)
Q. Did the Swiss Consul ever investigate the
camp ?
Mr. De Wolfe: Objected to as immaterial, incom-
petent.
The Court: Objection sustained.
(A. I believe the Swiss Consul visited the camps
but not Camp Bunka.)
Q. Incidentally, were your activities restricted
during this time ?
Mr. De Wolfe: Objected to, that is not germaine
to the issues, incompetent.
The Court: Objection sustained.
(A. I was under constant watch by Kempei-tai
and police.)
Q. Were you able to go to see Prince Ri any
time you wished or did you have to sneak out?
Mr. DeWolfe: Object to that as incompetent,
immaterial.
The Court : Objection sustained.
560 Iva Ikuko Toguri D' Aquino
(Deposition of Tamotsu Murayama.)
(A. More or less I have to go there secretly.)
Q. Did any of the prisoners of war protest as
to the type of script they were writing, do you
know?
Mr. DeWolfe: Object to that as immaterial, too
general, incompetent.
The Court: Objection sustained.
(A. They continually complained that they did
not want to write any [16] such war progaganda
manuscript as assigned to them by Uno.)
Q. Were these protests made in writing to you?
Mr. DeWolfe: Same objection, if it please the
Court.
The Court: Same ruling.
(A. Yes, there were many times secretly handed
to me. They were afraid to speak to me directly.)
Q. What did you do with them?
Mr. DeWolfe: Same objection, your Honor.
The Court: Same ruling.
(A. Some of them I told to Mr. Fujimura and
Mr. Matsui.)
Q. Oh, incidentally, Mr. Murayama, did you ever
see anyone slap Major Cousens?
Mr. DeWolfe: Object to that as incompetent, ir-
revelant, and immaterial.
The Court: Objection sustained.
(A. I did.)
Q. When and where ?
Mr. DeWolfe : Object to that as incompetent, ir-
relevant.
vs. United States of America 561
(Deposition of Tamotsu Murayama.)
Mr. Collins: The answer is directed to what oc-
curred actually at Radio Tokyo, if your Honor
please.
The Court: With that understanding I will al-
low it. If it doesn't, I will instruct the jury to dis-
regard it.
A. I do not recall the exact date, but it was at
Eadio Tokyo.
Q. Who slapped him?
A. Mr. Uno was arguing somewhat with Major
Cousens, then Uno slapped him. I left the room im-
mediately, as I was standing way back in the room.
Q. Mr. Muriyama, you were very friendly to the
prisoners of war, is that correct?
A. I tried to help them as much as I could.
Q. And they took you into their confidence from
time to time, is that not correct.
A. I think they did.
Q. Will you tell us the circumstances under
which you became very friendly with the prisoners
of war? [17]
Mr. DeWolfe: I object to that as incompetent,
irrelevant, immaterial .
The Court: Objection sustained.
(A. There were many instances. Once Major
Cox was suffering with malaria fever. I took him
to a hospital without official permission as he was
suffering so much. I took other POWs to a hospital
in order to relieve their suffering.)
562 Iva Ikuko Toguri D' Aquino
(Deposition of Tamotsu Murayama.)
Q. Were you reprimanded for doing that without
official orders?
Mr. De Wolfe: I object to that as incompetent,
immaterial.
The Court: Objection sustained.
(A. Yes.)
Q. By whom, sir, if you recall?
Mr. De Wolfe: Same objection, if the court
please.
The Court: Same ruling.
(A. Mr. Uno did not like me. Didn't want me,
and I finally was ordered not to speak to them with-
out the presence of other Japanese civilian mem-
bers.)
Q. Did you ever talk with either Capt. Ince or
Major Cousens about radio station JOAK?
Mr. DeWolfe: Go ahead.
A. Many times.
Q. What were their remarks about radio sta-
tion JO AK?
Mr. DeWolfe : Objected to as hearsay, incompe-
tent, irrelevant, immaterial.
Mr. Collins : This goes directly to the Zero Hour
program, if your Honor please.
The Court: In what manner does it go directly
to it?
Mr. Collins: Well, they were on the Zero Hour
program at that time.
The Court: Do those questions and answers
indicate it?
vs. United States of America 563
(Deposition of Tamotsu Murayama.)
Mr. DeWolfe: It says ''Radio Tokyo," sir.
Mr. Collins: It says ''Radio Tokyo."
The Court : Is the time fixed %
Mr. Collins: It is related to either Captain
Ince [18]
The Court: If there is any question about it, I
will allow it.
Mr. DeWolfe : May I point out, it was hearsay ;
Captain Ince
The Court: Read the question again so it wiU
clear it up.
Mr. Tamba: "What were the remarks about
radio station JOAK?"
The Court: Read it counsel, so it will be clear.
Mr. Collins: "What were their remarks about
radio station JOAKI"
Mr. DeWolfe: Objected to as hearsay, incom-
petent, irrelevant and immaterial.
The Court: Assuming that they did make a re-
mark, it is hearsay, isn't it.
Mr. Collins: No, I don't think it is.
The Court: And self-serving?
Mr. Collins: No, I don't think it is self-serving
at all. This is with very particular regard to the
Zero Hour itself.
The Court: Assuming it was, even,
Mr. DeWolfe : Hearsay to us, sir.
The Court: It doesn't take it out of the hearsay
rule.
Mr. Collins: It is an expression about the very
564 Iva Ikuko Toguri D' Aquino
(Deposition of Tamotsu Murayama.)
program itself by the persons who were conducting
the program, who were on that program at a time
that the defendant is actually on that program, and
the statement is made to a Japanese who is in
charge, at least had something to do with, two of
the prisoners of war who were on that program,
Muriyama had something to do with it; Muriyama
had something to do with it.
The Court: However, at this time I will allow
him to answer, so we will go along here and dispose
of this matter.
A. They said, '^ Radio Tokyo is a scientific toy
for the Japanese, and everything is a joke, and this
program assigned to us is simply the bunk." [19]
Mr. DeWolfe: Move that that go out. They
should not be allowed under legal rules of evidence
to bolster up their evidence given on the witness
stand by oral statement brought to the attention of
the court and jury by another witness, depriving
the United States of the right of confrontation ; and
the statements are made to them by other persons.
The governnment's position is that it is hearsay and
it should go out.
The Court: Let the answer go out and let the
jury disregard it for any purpose of this case.
Q. In your opinion was it the bunk?
Mr. DeWolfe: Object to that as calling for the
conclusion.
The Court: Objection sustained.
(A. It w^as more than a joke.)
vs. United States of America 565
(Deposition of Tamotsu Murayama.)
Q. Did you ever hear the prisoners of war broad-
cast weather reports on the radio ?
Mr. De Wolfe: Object to that as incompetent,
irrelevant, immaterial.
Mr. Collins : This is related to what
The Court: Objection sustained.
Mr. Collins: transpired, apparently, on the
Zero Hour program, with regard to Captain Ince
and Major Cousens.
Mr. De Wolfe: The answers don't show anything
about the Zero Hour on this deposition. I am fol-
lowing it down the page. If it did relate to the
Zero Hour, I wouldn't object to it, but there is no
showing it does, sir. There are other prisoner of
war programs.
Mr. Collins: It doesn't relate to other programs,
it relates to this particular program on which Cap-
tain Ince and Major Cousens were.
The Court : Read it.
Q. Did you ever hear the prisoners of war broad-
cast weather reports on the radio.
The Court: Objection sustained. [20]
(A. Yes.)
Q. In what way did they broadcast weather re-
ports 1
Mr. DeWolfe: Same objection.
The Court: This is the first time weather has
come into these radio broadcasts, is it? Or is it?
Mr. Collins: What is that Your Honor?
566 Iva Ikuko Toguri D' Aquino
(Deposition of Tamotsu Murayama.)
The Court : Is this the first time weather reports
have come into it?
Mr. DeWolf e : Yes, sir.
Mr. Collins: Well, I can't say that. There is a
question there. I think it is in the script, as a mat-
ter of fact. It is in there, or there is some testimony
concerning what the prisoners of war were able to
get in the radio script that was broadcast, and the
only form in which they could obtain it. I recall
there is some evidence of that.
The Court: Well, let's take it a step further.
Regardless of that, what place has it in this record ?
Mr. Collins: It has this much, if your Honor
please, that if they were trying to put out informa-
tion of benefit to the Allies, that is something which
has a direct, material bearing.
The Court : Read the question again.
Q. Did you ever hear the prisoners of war
broadcast weather reports on the radio ■?
The Court: Too general; I will sustain the ob-
jection.
(A. Yes.)
Q. In what way did they broadcast weather
reports ?
Mr. De Wolfe: Same objection, sir.
The Court : I will allow it. Find out what it was.
A. At the beginning of some radio programs the
voice would say, '^Here is another radio program
from Tokyo. It is a beautiful day, it is a fine day,
isn't if?" I considered it, myself, a weather broad-
cast.
vs. United States of America 567
(Deposition of Tamotsu Murayama.)
Mr. DeWolf e : Move it go out, your Honor.
The Court: I don't think it has any place in this
record. However, I will let it stand, if anybody
gets any comfort out of it. [21]
Q. Mr. Murayama, I hand you a document which
bears no date and ask you what this, if you know?
A. This is a letter given to me by the P.O.W.s
when my baby was almost dying.
Q. Is that signed by the prisoners of war in
the camp*? A. Yes.
Mr. De Wolfe: Object to that as immaterial, in-
competent, having no bearing on the issues here.
The Court: Objection sustained.
Q. How many names on it?
Mr. DeWolf e: Same objection.
The Court: Same ruling.
(A. Eighteen names.)
Mr. Collins: ^^Mr. Tamba: I offer that as de-
fendant's exhibit 2 in Murayama deposition."
May I ask you Mr. Tamba, is that exhibit 2
attached to the deposition?
Mr. Tamba: Here (indicating).
Mr. DeWolf e: Are you offering it now?
Mr. Collins: Did you see this?
Mr. DeWolf e: No. I object to it — are you
offering it?
Mr. Collins: Yes, we are offering it.
Mr. De Wolfe: Object to it as incompetent, ir-
relevant, immaterial.
The Court: What is it?
568 Iva Ikuko Toguri D' Aquino
(Deposition of Tamotsu Murayama.)
Mr. Collins: It is a letter addressed to Mr.
Murayama, ^^Dear Mr. Murayama:'' and it is
signed by some 18 prisoners of war.
Mr. DeWolf e : It is a note of consolation about
the child. It is a letter of consolation about the
sickness of the child.
The Court: Well, that has no place here, I will
sustain the objection to it.
Mr. Collins: Is that letter dated? Will you
see if it bears a date there, Mr. Tamba? [22]
Mr. Tamba: I don't see any, Mr. Collins.
Mr. Collins: Yes. Do you know the page, Mr.
Tamba ? We are on page 14, line 20.
Mr. Tamba: Yes, I have it.
Q. Do you know a person by the name of Ken
Oki? A. Yes.
Q. How many years have you know^n Mr. Oki?
A. Since Sacramento days.
Q. What kind of fellow is he for telling the
truth?
Mr. De Wolfe: Object to that as incompetent
and not a proper method of impeachment.
The Court: Objection sustained.
(A. He is a very flexible man.)
Q. In other words, he will say anything the oc-
casion justified, is that correct?
Mr. De Wolfe: I object to that as being incom-
petent, irrelevant, immaterial, leading, not proper
questioning.
The Court: Objection sustained.
vs. United States of America 569
(Deposition of Tamotsu Murayama.)
(A. More or less.)
Q. You were accused by the heads of Bunka
Camp of being too friendly with the prisoners of
war?
Mr. DeWolfe: That has no bearing here, noth-
ing germaine, incompetent.
The Court: Objection sustained.
(A. I was warned many times that I was too
friendly with these boys so they did not guaran-
tee )
Q. What did they do about you finally*?
Mr. DeWolfe: I object to that as incompetent.
The Court: Objection sustained.
(A. I was kicked out.)
Q. Where did you go from Bunka?
Mr. DeWolfe: Go ahead.
A. I went to Radio Tokyo.
Q. When you were kicked out from Bunka
Camjj did you have occasion to see the prisoners
of war again? [23]
Mr. DeWolfe: Go ahead.
A. They wanted me to come down to the broad-
cast so I went down there many times.
Q. And, incidentally, you were finally drafted
in the Japanese Army? A. I was.
Q. When was that, Mr. Murayama?
A. June 23, 1945, I got drafted.
Q. To what work were you assigned?
A. Constructing roads.
Q. Where? A. In Nagano Prefecture.
570 Iva Ikuko Toguri D' Aquino
(Deposition of Tamotsu Murayama.)
Q. And you were in the army for how long?
A. Until the termination of war.
Q. Did you volunteer. A. No, I didn't.
Q. Have you ever voted in a Japanese elec-
tion? A. I did not.
Q. Have you ever held a government office in
Japan ? A. No.
Q. Mr. Murayama, do you recall a conversation
with Major Cousens in which he indicated he
wished to commit suicide?
Mr. De Wolfe: Object to that as incompetent,
irrelevant, immaterial, hearsay.
The Court: Sustained.
Mr. Collins: It is preliminary, if your Honor
please.
The Court: The court has ruled; the objection
is sustained.
(A. Yes.)
Q. Tell us the substance of that conversation?
Mr. DeWolfe: Same objection, sir.
The Court: Same ruling.
(A. I took Major Cousens and Capt. Ince home
with me, to my home, and I heard their sufferings
and complaints. Then, later, when I met him at
Radio Tokyo, he said: ^^I want to commit suicide.
I cannot stand this kind of humiliation any
longer." He secretly told me, asked me, if I can
obtain a pistol, and I said: ^^ Absolutely not — I
cannot." [24]
vs. United States of America 571
(Deposition of Tamotsu Murayama.)
Q. Did he tell you how many bullets he wanted
you to gef?
Mr. De Wolfe: Same objection.
The Court: Objection sustained.
(A. ^^Just one bullet is enough to end my life."
I said: ''Keep your chin up. Soon the day may
come, soon.'')
Q. Incidentally, when you talked with the pris-
oners of war in Radio Tokyo, after your connec-
tion with Bunka Camp had been severed, you con-
tinually told them that the war would soon be over?
Mr. De Wolfe: Object to that as too general,
incompetent, irrelevant, immaterial.
The Court: Objection sustained.
(A. I told them latest developments of the war
situation from time to time. I gave them some
short wave news to encourage them to keep up their
vitality.)
Q. Mr. Murayama, were the prisoners of war
also led to believe that Matsui had also been ex-
ecuted ?
Mr. De Wolfe: Objected to as calling for a con-
clusion, incompetent, irrelevant, immaterial.
The Court: Objection sustained.
(A. P.O.W. boys continually asked me why Mr.
Matsui failed to come to see them.)
Q. Were you ever called vile names by Tsuneishi
and Uno and other Japanese civilians in Camp
Bunka?
572 Iva Ikuko Toguri D' Aquino
(Deposition of Tamotsu Murayama.)
Mr. De Wolfe: Object to that as too general,
incompetent, irrelevant and immaterial.
The Court: Objection sustained.
(A. Names?)
Q. Vile names, did they ever swear at you?
Mr. DeWolfe: Same objection. •
The Court: Same ruling.
(A. ^^Hishikari." He didn't want me to talk
to the P.O.W.s.)
Q. What did he call you, bad names ?
Mr. DeWolfe: Same objection, if the court
please.
The Court: Objection sustained.
(A. He said he w^as going to remove me from
the camp. Rather he w^as going to ask Tsuneishi
to have me removed from the camp.)
Q. Oh, incidentally, referring to this defend-
ant's exhibit 2 which I offered in evidence, I see
directly to the left of the w^ords '^ Yours very sin-
cerely," two marks in a reddish color. What were
those marks?
Mr. DeWolfe: Objected to because the letter
didn't go in.
The Court: Objection sustained.
Mr. Collins: Is that the letter we just looked
at, Mr. Tamba?
Mr. Tamba: Yes.
(A. They were the Japanese ''han" or seal. One
is for Mr. Uno, the other is for Ozeki. These
passed censors, this letter sent to me.)
vs. United States of America 573
(Deposition of Tamotsu Murayama.)
Q. Did you ever tell Tsuneishi personally that
the prisoners of war complained about conditions
and their work at Camp Bunka, did you?
Mr. De Wolfe: I object to that as immaterial
and incompetent.
The Court: Objection sustained.
(A. I told him once or twice.)
Q. What did he say to you?
Mr. De Wolfe: Objected to as incompetent,
hearsay.
The Court: Objection sustained.
(A. I mentioned about the international law
and he commented: ^^We can ignore that.")
Q. Did you ever know or see a person known
as Iva D 'Aquino, also known as Iva Toguri?
A. Yes.
Q. Do you know whether that person knows
you?
A. I think she just knows me by sight or name.
Q. Where did you see that person?
A. I saw^ her at the studio, Radio Tokyo.
Q. Did you ever see her broadcast or hear her?
A. Yes, introducing their program.
Q. What was she doing? What kind of an in-
troduction was she making? [26]
A. When I saw her she was reading for the
first part of the Zero Hour manuscript for the in-
troduction of music.
Q. What kind of music was she introducing?
A. Probably jazz music.
574 Iva Ikuko Toguri D' Aquino
(Deposition of Tamotsu Miirayama.)
Q. Do you recall? A. Yes.
Q. Did you ever see her in a room with Cou-
sens? A. No, I didn't.
Q. At the radio station where script was being
prepared ?
A. No, I didn't see her with Major Cousens
but Major Cousens told me he is working up a
certain program and he gives me some scripts to
read.
Q. Did he say anything about his commentaries
being continuous?
A. He said he is building up coromentary one
after another for certain purposes.
Q. And what did you say to Cousens?
A. ^'Well, since you are imposed to do that
work, do whatever you want."
Q. Oh, when Mr. Tsuneishi used to appear at
Camp Bunka was he always wearing a little saber?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant.
The Court: Objection sustained.
(A. Not saber. Japanese sword.)
Q. How long is that sword?
Mr. De Wolfe: Same objection, if it please the
court.
The Court: Same ruling.
(A. I don't know the exact measurements, but
three feet or less, something like that.)
Q. Was it customary for Japanese officers who
were doing desk work to wear swords?
vs. United States of America 575
(Deposition of Tamotsu Murayama.)
Mr. De Wolfe: Object to as too general, incom-
petent.
The Court: Objection sustained.
(A. Not at their desks. They are supposed to
remove the sword as soon as they enter the room.)
Q. Did the prisoners of war have swords or
guns so they could protect themselves at Camp
Bunka?
Mr. DeWolfe: Same objection, sir.
The Court: Same ruling.
(A. They were completely helpless, mentally
and physically.)
Q. At the beginning of Camp Bunka was the
script prepared by prisoners of war or someone
else, if you know"?
Mr. DeWolfe: Objected to as irrelevant.
The Court: Objection sustained.
(A. At the early part of the P.O.W. broadcast
manuscripts were prepared by Imperial headquar-
ters.)
Q. At the early part of the P.O.W. broadcast
manuscripts were prepared by Imperial
Mr. DeWolfe: That is the answer.
Mr. Collins: I beg your pardon.
Mr. Tamba: Line 18 is the next question, Mr.
Collins.
Q. And given to the prisoners of war to broad-
cast'?
Mr. DeWolfe: Same objection, sir.
The Court: Same ruling.
(A. That's right.)
576 Iva Ikuko Toguri B^ Aquino
(Deposition of Tamotsu Murayama.)
Q. Incidentally, was there a Lt. Hamamoto at
Camp Bunka? A. Yes.
Q. Was lie also carrying a sword at all times?
A. Always.
Mr. De Wolfe: Objected to as immaterial, move
it go out.
The Court: The objection will be sustained; let
it go out.
Q. Did Mr. Uno appear in uniform at Camp
Bunka ?
Mr. De Wolfe: Same objection.
The Court: Same ruling.
(A. Yes.)
Q. Was he likewise carrying a sword?
Mr. DeWolfe: Same objection, your Honor.
The Court: Objection sustained.
(A. Yes.) [28]
Q. At what time did the prisoners of war who
were of the Catholic faith request a priest, do you
know?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant, immaterial, not germain to the issues
here involved, wholly immaterial.
The Court: Objection sustained.
(A. Major Cousens approached me one day and
he said: ^' There are many Catholic boys. They
are suffering so much. I would like to help them
somehow. Would you be kind enough to arrange
a holy mass, confession, for these boys." Then I
approached Archbishop Doi and he was so willing
vs. United States of America 577
(Deposition of Tamotsu Murayama.)
and happy to conduct a holy mass at the camp.
Then I was forbidden to make such arrangements
for these boys. It was one of the main reasons
I was kicked out from the camp.)
Q. Who forbade you to make these arrange-
ments ?
Mr. DeWolfe: Same objection, Judge.
The Court: Same ruling. The objection will
be sustained.
(A. Hishikari and Tsuneishi. So I bought
blessed rosaries for all the. Catholic boys before
I left Camp Bunka. I explained to them that ^^I
w^as very sorry I cannot help conduct holy mass
for you but God bless you.")
Q. Mr. Murayama, prisoners of war in Camp
Bunka write you now, do they not?
Mr. DeWolfe: Object to that as incompetent,
irrelevant and immaterial.
The Court: Sustained.
(A. Yes, I still receive some letters from Hen-
shaw and Capt. Kalbfleisch.)
Q. And Captain Kalbfleisch sends you gifts at
Christmas, such as clothing?
Mr. DeWolfe: Objected to as immaterial.
The Court: Objection sustained.
(A. Yes, he is kind enough to send me all my
needs.)
Q. Where — were there ever any girls who broad-
cast at Radio Tokyo, do you know, besides Miss
Toguri? A. Yes, I know.
Q. Who were they, if you recall? [29]
578 Iva Ikuko Toguri D' Aquino
(Deposition of Tamotsu Murayama.)
A. Ruth Hiakowa, Katherine Muroka, I forgot
the other girls' first name, Fujiara, and June Su-
yama from British Columbia.
Q. Do you know of a single instance in Camp
Bunka where any prisoners volunteered to write
script or broadcast %
Mr. DeWolfe: I object to that as immaterial,
not germain to the issues here, and
The Court: The objection will be sustained.
(A. I am so familiar with the Bunka Camp con-
dition but no one volunteered at any time. Con-
tinuously they complained to me of their physical
and mental sufferings and I tried to prevent such
nonsense; such war effort based upon international
law, but I was helpless. I could not do anything for
them. Some of them tried to please Uno and other
persons at the camp but not from their bottom of
heart. They really despised such broadcasts.)
Q. You had many confidential discussions with
the prisoners of war ^
Mr. DeWolfe: Same objection, if the court
please.
The Court: Objection sustained.
(A. Yes, I had, many times.)
Q. And you would be in their rooms discussing
it with them 1
Mr. DeWolfe: Same objection, if it please the
court.
The Court: Objection sustained.
(A. When Uno was not there.)
vs. United States of America 579
(Deposition of Tamotsu Murayama.)
Q. When Uno walked in, what happened?
Mr. DeWolf e : Object to it as immaterial.
The Court: Objection sustained.
(A. Everybody hushed up.)
Mr. Collins: Cross-examination.
Mr. DeWolf e : Waived, not offered.
Mr. Collins: The defendant offers the cross-
examination. This is cross-examination by Mr.
Storey.
(Whereupon the cross-examination was read,
Mr. Collins reading the questions and Mr.
Tamba the answers.) [30]
Q. Mr. Murayama, you returned from the
United States to Japan in 1939?
A. The last time.
Q. You retained your American citizenship until
you were drafted into the army?
A. I believe so.
Q. What date was that ?
A. I got drafted in the army June 23, 1945.
Q. You considered yourself an American citizen
until that time ? A. Yes.
Q. What were your official duties at Camp
Bunka ?
Mr. DeWolf e : Objected to as immaterial.
The Court: Objection sustained.
(A. An interpreter.)
Q. Is that all you did, interpret there ?
Mr. De Wolfe: Same objection.
The Court: Same ruling.
580 Iva Ikuko Toguri D^ Aquino
(Deposition of Tamotsu Murayama.)
(A. And, and, well, that's right, interpret.)
Q. In other words, you did not have anything
to do unless some official wanted you to interpret?
You didn't have anything else to do ?
Mr. DeWolfe: Go ahead.
A. Well, I was given manuscript reading to do.
I took down manuscripts to Radio Tokyo. That's/
part of my interpreter's job.
Q. Were you censoring these manuscripts?
A. I did not.
Q. Did you supervise the writing of these manu-
scripts ?
A. Never, I never did. It was not my job at all.
Q. During the time you were at Camp Bunka,
did you have any [31] official capacity with any
other Japanese agency? A. No.
Q. That was the only job you occupied ?
A. That's right.
Q. Did you have any official connection in any
way with the Zero Hour program ?
A. I had no official capacity with the Zero Hour.
Q. Approximately how many times did you ob-
serve the broadcast of the Zero Hour program?
A. I should say, many times, oh, I should say,
fifteen or twenty times I dropped around the
studio.
Q. That was over a period of how long ?
A. It is a long time. I cannot say exactly how
long. I heard the radio program when I was at the
Bunka Camp. I went down there to hear it once
vs. United States of America 581
(Deposition of Tamotsu Murayama.)
in a while, and even after I went to Radio Tokyo
I heard the program.
Q. You mentioned that there were several other
girls working out at Radio Tokyo, how many of
these girls participated in the Zero Hour program ?
A. I know exactly, Ruth Hayakawa, Cathleen
Muruka, Suyama, wait a minute. Other girls I men-
tioned a while ago w^ere down the studio, but I can-
not exactly say whether they x^^rticipated or not.
I know these girls read the manuscript.
Q. These girls you mentioned did they have
regular parts on the Zero Hour each day it was
broadcast?
A. I didn't see every day. I cannot say regular
part each day.
Q. While you were observing the Zero Hour
program did you see more than one girl participate
in any Zero Hour program ? A. Yes.
Q. Did you see Miss Toguri and some other girl
participate at the same time and on the same
program ?
A. Maybe June Suyama was there. [32]
Q. Did these other girls have regular parts on
the program or did they substitute for Miss Toguri
from time to time ?
A. No, they took parts.
Q. So they were regularly assigned and had
regular parts on the Zero Hour program ?
A. That's right.
582 Iva Ikuko Toguri B^ Aquino
(Deposition of Tamotsu Murayama.)
Q. How many girls did the Zero Hour have on
one particular program ?
A. I have no exact recollection.
Q. Was Miss Toguri, to your knowledge, forced
to work on this Zero Hour ?
A. I don't know. I cannot say because I never
spoke to her.
Q. Did any Kempei Tai or policeman ever talk
to you concerning Miss Toguri ?
A. I don't know.
Q. You know whether they talked to you, or
not. A. Who?
Q. The Kempei Tai or the police ? A. No.
Q. Did Miss Toguri seem to be pleased with her
success as radio announcer ?
A. I don't know but Major Cousens said: '^I
have a particular aim in this program in building
up this Zero Hour program."
Q. That's your answer? A. Yes.
Q. What did Major Cousens mean by having a
particular purpose in building this program up?
Mr. DeWolfe: Object to that as incompetent,
calling for a conclusion.
The Court: Sustain the objection.
Mr. Collins: Your Honor sustained the objec-
tion ?
The Court: Sustain the objection.
(A. I thought he meant to say a counter-
espionage by building up some radio program. [33]
Q. Did you ever hear a Zero Hour program
vs. United States of America 583
(Deposition of Tamotsu Murayama.)
which had a double meaning or which you consid-
ered to be counter-espionage ?
Mr. De Wolfe: Object to that as calling for a
conclusion..
The Court : Objection sustained.
(A. I didn't pay any attention so I cannot say
anything about it.)
Q. You did hear the Zero Hour program?
A. I just heard music, just part of it, and I
didn't pay much attention.
Q. What was the purpose of the Zero Hour
program ?
A. It was aimed as Japanese army propaganda
but it was in no way propaganda at all. As Cousens
said, everything was a scientific toy and joke.
Q. The purpose of having the Zero Hour pro-
gram from the Japanese standpoint was to broad-
cast propaganda?
A. Maybe the Japanese soldiers thought so but
many laughed at the Zero Hour as nonsense.
Q. Who laughed at the Zero Hour program as
nonsense ?
Mr. DeWolfe: Object to that as calling for the
opinion and conclusion, too general.
The Court: Objection sustained.
(A. Many boys and girls working at Radio
Tokyo. Mostly Nisei.)
Q. Was the Zero Hour supposed to amuse and
entertain the American troops ?
A. I don't know.
584 Iva Ikuko Toguri B' Aquino
(Deposition of Tamotsu Murayama.)
Q. Mr. Murayama, start right from the begin-
ning of the Zero Hour programs, as you listened
to it, and tell us everything that you remember
about that particular program. Any program. What
did it consist of ?
A. Jazz, some dramatic part of it. I didn't pay
much attention. I listened to jazz music, so I can-
not
Q. Then you would leave after you listened to
the jazz % Then you would leave the studio ?
A. That's right.
Q. That happened on all occasions when you
were at the radio station listening to the Zero Hour ?
A. I listened to some drama part of it but I
have no recollection.
*Q. Tell us about part of that drama. What was
it about?
A. Now, I listened to many radio programs. It
is many years ago and it is very difficult to recollect
the exact type of radio drama. I remember a kind,
of lively atmosphere. That's about all.
Q. Is that all you can tell us about the Zero
Hour? [34]
A. I didn't pay much attention.
Q. Did you ever see Miss Toguri at Camp
Bunka while you were working there ?
A. Never did. That is, I didn't stay always
there.
Q. When would you usually see Miss Toguri]
around the radio station? What time of day?
vs. United States of America 585
(Deposition of Tamotsu Murayama.)
A. During evening. I saw her picking up radio
manuscript just before the Zero Hour.
Q. What were your duties at the radio station?
Why were you there?
A. News translator.
Q. While you were assigned to Camp Bunka
what were you doing at Radio Tokyo ?
A. I took down POW or escort boys to the
radio station.
Q. Who were those boys ?
A. (Witness examines defendant's exhibit "2^^
in his deposition.) Bucky Henshaw, Light, Newton,
H. Provoo, McNaughton, Wisener, Ince, some
others. It depended
Q. What w^ere those people doing at the radio
station ?
A. They broadcast as they were ordered to.
Q. What were they broadcasting ?
Mr. De Wolfe: Objected to as immaterial; it is
not the Zero Hour.
The Court: Unless it is the Zero Hour
Mr. Collins: ^'What were these people doing at
the radio station? — let's see. No, ^^What were they
broadcasting?" This relates to some — I assume it
relates to 17 persons, including Major Cousens and
Captain Ince, that appear on that Exhibit 2.
Mr. Tamba : No, Ince is one of those he escorted.
The Court : The objection will be sustained. [35]
(A. First, manuscripts were prepared by the
Japanese General Headquarters. They were ordered
586 Iva Ihuho Toguri D' Aquino
(Deposition of Tamotsu Murayama.)
to prepare some radio dramas, some commentaries,
and at the very last moment, just before the broad-
cast some parts were cancelled by Buddy Uno.)
Q. What were those scripts and manuscripts
that you mentioned, were they propaganda?
Mr. De Wolfe: Object to that as incompetent,
irrelevant.
The Court: Objection sustained.
(A. I didn't think. Some propaganda were pre-
pared by the army, Japanese Imperial Head-
quarters.)
Q. Did these prisoners of war broadcast this
propaganda over the air ?
Mr. DeWolfe: Object to that as immaterial, in-
competent, nothing to do with the Zero Hour.
The Court: Objection sustained.
(A. They were ordered to read if.)
Q. And they did read it over the air ?
Mr. DeWolfe: Same objection, sir.
The Court: Objection sustained; same ruling.
Mr. Collins: I can't state definite, if your Honor
please, that that relates to other programs. It well
may include this program. I am not certain of that.
The next sentence will show.
(A. They had to.)
Q. What time did these prisoners of war broad-
cast during the day %
A. Between eleven and twelve, or thereabouts.
Q. When they finished broadcasting, did you
take them back to Camp Bunka?
1
vs. United States of America 587
(Deposition of Tamotsu Murayama.)
A. Yes, I did.
Q. Did you have official capacity around Radio
Tokyo later in the day ^
A. I took manuscripts to Radio Tokyo.
Q. You delivered manuscripts there ?
A. Yes, I was ordered to take down the manu-
scripts sometimes.
Q. Whom did you take them to ?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant and immaterial; no reference to the Zero
Hour program whatsoever, question or answer.
The Court: Objection sustained. [36]
(A. Took down to the section that, let's see.
Had to take it down to the music section to pre-
pare musics, no, wait a minute. I took all manu-
scripts at once and I placed on, who was it, some-
times I left it with Mr. Yamazaki, sometimes with
Mr., I forget, anyway I leave there POW manu-
scripts.)
Q. In other words, you picked up the manu-
scripts prepared by the prisoners of war at Bunka
Camp and delivered them to the radio station, is
that correct '^
Mr. DeWolfe: Same objection, if it please the
Court.
The Court: Same ruling.
(A. Yes, I did.)
Q. Did you have any other official capacity for
these manuscripts other than to take them down to
Radio Tokyo'?
588 Iva Ikuko Toguri B' Aquino
(Deposition of Tamotsu Murayama.)
A. No, I didn't.
Q. Then you would return to Bunka Camp?
A. I was just hanging around Radio Tokyo
rest of the day listening to music or sitting around.
Q. Did you have any regular hours at Bunka?
A. Well, my duty was to take these boys to the
Radio Tokyo, so as soon as my duty is over I went
down to Radio Tokyo, or went home because I was
not feeling well then.
Q. While you were loafing out at the radio
station they had no interpreter at Bunka? [37]
A. Well, Uno was sitting with POWs right in
POW quarters where all POW were assigned to
their duties; blackboard, their names and amount
of work to be done so Uno, and — name by name
were there so I was not needed around the camp
at all, particularly around POW quarters.
Q. In other words, they had no need for your
services at all in Bunka ? A. No.
Q. Did they keep you out there for how long?
A. Until I was kicked out.
Q. Tell us how long in months from the time
you started working at Bunka until you finished,
you were kicked out ?
A. December, 1943, to, it is safe to say, some-
where around January, January or February, 1945.
Q. During this period of time they kept you
out there and your services were not needed what-
ever?
A. They needed me as an interpreter to escort
vs. United States of America 589
(Deposition of Tamotsu Murayama.)
these boys back and forth to Radio Tokyo and all
that.
Q. Didn't you testify a minute ago that your
services were not needed at all there?
A. I didn't say, ''needed at all.'' I said that
after my duty is over I did not go over to the POW
quarters.
Q. Were you present when Major Tsuneishi
gave orders to the prisoners of war that they must
cooperate ?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant.
The Court: Objection sustained.
(A. Yes.)
Q. And he said that their lives would not be
guaranteed if they did not?
Mr. De Wolfe: Same objection.
The Court: Same ruling.
(A. Yes.)
Q. And that one Williams stepped forward and
said he would not cooperate ?
Mr. DeWolf e : Objected to as immaterial, incom-
petent.
The Court: Objection sustained.
(A. Yes.)
Q. Was Willams executed?
Mr. DeWolf e: Same objection.
The Court: Same ruling.
(A. No.) [38]
590 Iva Ikuko Toguri D^ Aquino
(Deposition of Tamotsu Murayama.)
Q. Did you tell me in the interview here this
morning that Williams was executed, and that you
knew he was executed?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. No, I didn't say so. I think my wording was
not accurate.)
Q. Didn't you tell me this morning that Major
Tsuneishi said in the administration office in your
presence, that Williams must be executed %
Mr. DeWolfe: Same objection.
The Court: Same ruling; the objection will be
sustained.
(A. Yes he said so, but I said )
Q. And I asked you this morning, was he exe-
cuted, do you recall that?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant.
The Court: Objection sustained.
(A. No, I didn't say it.)
Q. Do you recall my asking that question?
Mr. DeWolfe : Objected to as immaterial, incom-
petent.
The Court: Objection sustained.
(A. You questioned me about Williams, but I
didn't say he was executed.)
Q. You didn't tell me that this morning?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
vs. United States of America 591
(Deposition of Tamotsu Murayama.)
(A. No, I didn't say so, Mr. Storey. I think it
was your misunderstanding. My inaccuracy in word-
ing, I am sorry.)
Q. Have you talked with anyone during the noon
hour concerning the execution of Williams^
Mr. De Wolfe : Objected to as immaterial, incom-
petent.
The Court: Objection sustained.
(A. Oh, I said to Mr. Pujimura, that )
Q. Have you talked to anyone during the noon
hour today concerning the execution of Williams ?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
Mr. Collins: And then this last question, this is
interposed by Mr. Tamba.
Mr. Tamba : You mean statement.
Mr. Collins: That's right — statement. He wants
to know did you talk to me about it this noon.
Mr. DeWolfe: Objected to as incompetent, ir-
relevant.
The Court: Objection sustained.
(A. Well, Mr. Tamba said: ^^You told Mr.
Storey that Williams was executed", so I said: ^'No,
I never did and there must be some misunderstand-
ing", I said.)
Mr. Collins : Then the following question by Mr.
Storey, continuing the questions by Mr. Storey.
Q. You have testified that you were present when
Mr. Uno slapped Major Cousens in the radio sta-
tion ? A. Yes.
592 Iva Ikuko Toguri D' Aquino
(Deposition of Tamotsu Murayama.)
Q. Tell us about that incident?
A. I was back of the room when Uno was argu-
ing something in an [40] angry tone with Major
Cousens. Then I saw Uno slap Cousens, so I left
the room immediately after that.
Q. What were they arguing about?
A. I don't know.
Q. How big was the room where they were argu-
ing ? A. It is a very big room.
Q. You testified that they were arguing in loud
voices ?
A. Well, I heard angry voices. I could imagine
from the tone of voice
Q. But you cannot remember what they were
arguing about?
A. No, I don't. I didn't even inquire, but Major
Cousens was so angry, every time he mentions
Uno's name he was holding his fists like this (wit-
ness clenches fists).
Q. Did Major Cousens clench his fists after he
was slapped by Uno?
A. I left the room immediately so I don't know.
Q. How many times did he slap him?
A. Only once as far as I know.
Q. How long were you in the room during this
argument ?
A. I have no recollection how long I stayed there
but very short time.
Q. Did you enter the room with Mr. Uno ?
A. Yes I followed him, no, wait a minute, when
{
vs. United States of America 593
(Deposition of Tamotsu Murayama.)
I entered there they were arguing. That is the way
I remember it.
Q. Do you recall any portion of the argument?
A. I don't
Q. And give us, approximately, the dimensions
of the room you were in when this argument was
taking place?
A. That room was, let's see. It is very difficult
to say. About four times larger than this room (wit-
ness refers to the room in which the deposition is
being taken, which was decided on by counsel was
10x20).
Q. Who occupied that office at that time? [41]
A. I think it was the Zero Hour room. I think it
was the Zero Hour room.
Q. Who else was in the room at that time?
A. Three, four boys.
Q. Who were they?
A. I cannot say exactly, Mr. Mitsushio, pardon
me, George Nakamoto was there.
Q. Are you sure Mr. Nakamoto was present?
A. I think he was there. I am not sure though.
I recall three or four boys were there.
Q. Who else was there?
A. No, I don't recall, who was there. It was
many years ago and I cannot recall every detail
of every hour I have spent.
Q. Was Mrs. D 'Aquino there?
A. No, I don't think so.
Q. You have given testimony to the effect that
594 Iva Ikuko Toguri D' Aquino
(Deposition of Tamotsu Murayama.)
you submitted a copy of international law concern-
ing treatment of prisoners of war to the officials
of Camp Bunka*?
Mr. De Wolfe: I object to that as being incom-
petent, irrelevant; it went out of the testimony on
direct, of this witness.
The Court: Objection sustained.
(A. Yes.)
Q. Where did you get that copy?
Mr. De Wolfe: Objected to as immaterial.
The Court: Objection sustained. I suggest the
jury take a recess.
(A. Out of my law books.)
(The jury left the jury box and retired for
a recess. The following occurred outside the
presence of the jury.)
The Court: May I inquire, Mr. Collins, how
many depositions there are?
Mr. Collins: Well, I want to read one more
deposition after this, Your Honor, and then I have
some witnesses thereafter.
The Court: You have only one more deposition?
Mr. Collins: Yes, I have a number more, but I
didn't wish — I wish to read them in a certain order.
The Court : Well, I will address my remarks now
to the number that has not been read in evidence.
Mr. Collins: Oh, I have quite a few. Your
Honor. I have 14 here now.
The Court : I am prepared to take those up in the
absence of the jury and rule on them, so that you
vs. United States of America 595
(Deposition of Tamotsu Murayama.)
may have a record. We are wasting considerable
time here, and it can not be justified, even under the
law. However, as I have tried to indicate, I have
always been very liberal in giving an opportunity
to make any showing either side desired, that I
thought had any relation to the issues in this case.
But I might suggest that some of these depositions
could be disposed of on motion in their entirety,
with possibly two or three or four or five interrog-
atories.
Mr. Collins: I don't know.
The Court : I say that now so that you may have
an opportunity to give some thought to the matter,
and I might further say that it might prejudice this
case either on one side or the other, this method of
procedure, if I have any conception of my duty, and
I don't know what is in the depositions. I don't
want to prejudice them, but in the light of those
depositions that have already gone in, I am afraid
that we are not only wasting time, but it may preju-
dice your client.
Mr. Collins: Well, that is a question. I mean,
if objections are going to be sustained as to certain
lines of questioning, then those are matters that we
could take up with the Court in the absence of the
jury. That is true enough. Then if the Court
sustains objections to, say, given lines,
The Court: You will have a record.
Mr. Collins : We will have a record there. Then
we can still make an offer of proof.
596 Iva Ikuko Toguri D^ Aquino
(Deposition of Tamotsu Murayama.)
The Court: That is all right. [43]
Mr. Collins: Of course, I thinly the depositions
then would constitute an offer of proof, by offering
them.
The Court: There is no necessity of going on
with the full question and answer. In doing that,
it would also protect your legal rights.
Mr. Collins : Well, I am sure that two of these—
the balance of this deposition of course, we are
getting close to the end of this deposition.
Mr. De Wolfe: What page?
Mr. Collins: There will be at least one more
deposition.
The Court: You may take it up in the recess;
if there is any way you can meet the situation I
think it would be very well to consider it.
Mr. Collins : I think there is only one more dep-
osition that will be of like character as this one.
There is only one more, I am convinced of that.
The Court: I have one deposition in mind, I
would have no hesitancy on a motion to dispense
with the whole deposition, if I were as familiar with
it as I am now, with the exception of two or three
questions that may now be legally material to the
issues before the Court.
Mr. Collins: Well, then, I would say this then.
What we might do
The Court: Think about it in any event, and
any plans you can suggest — I had in mind that in
the interests of time also, w^e might do this, and in
I
vs. United States of America 597
(Deposition of Tamotsu Murayama.)
the interest of not prejudicing your client one way
or the other.
If I am not hearing this case, I would be hearing
some other case, and it is important.
(Recess.) [44]
Mr. Collins: Page 29, Mr. Tamba, line 23:
Q. Did the prisoners of war at Camp Bunka
know they had rights under international law as
prisoners of w^ar?
Mr. De Wolfe: I object to that as incompetent,
irrelevant and immaterial.
The Court: Objection sustained.
(A. They knew^ that, so Major Cousens and the
boys often requested me to help them according
to the international law.)
Q. Did you personally present Major Tsuneishi
with a copy of this?
Mr. De Wolfe: I object to that as incompetent,
irrelevant and immaterial.
The Court: Objection sustained.
(A. I presented Tsuneishi, pardon me, Fuji-
mura, and requested him to explain to Major
Tsuneishi.)
Q. Did Fujimura present this to Major
Tsuneishi '^
Mr. DeWolfe: Same objection, your Honor.
The Court: Same ruling.
(A. I think he explained to Major Tsuneishi
but Major Tsuneishi did not listen, so Mr. Fuji-
mura wanted to resign as civilian head of that
camp, and )
598 Iva Ikuko Toguri D^ Aquino
(Deposition of Tamotsu Murayama.)
Q. Were you present during the conversation
between Major Tsuneishi and Mr. Pujimura?
A. I was not there.
Q. So all you know about this is what some-
one else told you?
A. Mr. Fujimura told me.
Q. Mr. Murayama, shortly after war was de-
clared, were any foreign nationals interned in
Japan ? A. Pardon me ?
Q. (Question repeated.) A. Yes.
Q. Why were they interned ? A. Why ?
Q. Yes. A. I don't know. [45]
Q. Were they interned because the Japanese
government thought them dangerous in their in-
ternal security, internal security of Japan?
Mr. DeWolfe: I object to that as calling for
a conclusion.
The Court: Objection sustained.
(A. I didn't know the policy of the Japanese
Government.)
Q. Were you interned after the outbreak of the
war?
Mr. DeWolfe: I object to that as incompetent.
The Court: Objection sustained.
(A. I was not, but I was arrested, and )
Q. How^ long were you held?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. I was detained for two days and I w^as
ordered not to go out without official permission.)
vs. United States of America 599
(Deposition of Tamotsu Murayama.)
Q. Besides Major Cousens, were you ever pres-
ent when any prisoner of war was slapped?
A. No.
Q. Besides Major Cousens, were you ever pres-
ent when any prisoner of war was beaten in any
way?
Mr. De Wolfe: I object to that as incompetent,
irrelevant and immaterial.
The Court: Objection sustained.
(A. No. Some prisoners complained to me aft-
erwards but I was not present when anyone was
particularly slapped.)
Q. Did you ever see Miss Toguri give food to
the prisoners of war? A. I was not present.
Q. Were you ever present when Miss Toguri
gave medicine or cigarettes to the prisoners of
war?
A. Some Niseis always secretly handed to them
cigarettes, bread, butter, vitamin pills and other
things, but I was never present when Miss Toguri
brought them things. Most of the times we give
them very secretly.
Mr. DeWolf e : I move that go out. Your Honor.
The Court: Objection sustained. It may go out.
Q. Was Mr. Uno still employed at Camp Bunka
when you left for the army?
Mr. De Wolfe: I object to that as immaterial.
The Court: Objection sustained.
(A. I don't know whether he was there when
I left or he left for Manila after I left there, I
don't recall.)
600 Iva Ikuko Toguri B' Aquino
(Deposition of Tamotsu Murayama.)
Q. Was Mr. Uno one of your enemies at the
camp?
Mr. De Wolfe: Same objection.
The Court: Same ruling.
(A. I didn't say enemies, but I was interfer-
ing in many ways.)
Q. Do you hold any bias against Major
Tsuneishi ?
Mr. De Wolfe: I object to that as incompetent.
The Court: Sustained.
(A. I didn't, but I wanted to treat P.O.W.s
as gentlemen, but Major Tsuneishi considered
P.O.W.s more or less criminally so he thought he
can order them anything he wanted to. That
was the difference of the conception of prisoners
of war between me and Major Tsuneishi.)
Q. Are you biased against Major Tsuneishi?
Mr. De Wolfe: No answer to that.
(Mr. Tamba: He answered that.)
Q. Mr. Murayama, have you ever written any
book dealing with propaganda policy for the Japa-
nese government?
A. I never wrote a book.
Q. Did you ever write a long treatise on propa-
ganda for the Japanese government?
A. During the wartime I was asked to file com-
ments on news and other things but it was not
a publication or edited. Just to submit as part of
my duty to the Imperial Headquarters, just mimeo-
graphed
vs. United States of America 601
(Deposition of Tamotsu Murayama.)
Mr. Tamba: If there is a book or a treatise on
which you are questioning the witness I demand
that the witness be [47] shown the document. I
want the witness to see the book or the treatise
then he can answer your questions.
Mr. Storey: I think the government has the
right to ask this man about the treatise
Mr. Tamba: Show him the treatise and then
you can ask him.
Q. Do you deny writing a book
A. No, not a book.
Q. Did you prepare anything for the Japanese
Government in the nature of propaganda?
A. Well, I was requested to write something on
news so I write this kind of a news, and so on
and so on, and I submit it as I was ordered.
Q. When did you submit it?
A. I do not recall the date.
Mr. Tamba: I now make the request again that
the witness be permitted to see this treatise or book
before he is asked any more questions.
Mr. Storey: It is a very simple question, Mr.
Tamba.
Mr. Tamba: I again demand that the book or
treatise be presented to the witness. He has the
right to see any book that he is supposed to have
written, if you are going to ask him any questions
about it.
Mr. Storey: I offer this book in evidence as
government's Exhibit ''!'' in Murayama deposition.
602 Iva Ikuko Toguri V Aquino
(Deposition of Tamotsu Murayama.)
(Book is shown to witness.) [48]
Q. Was it while you were working at Camp
Bunka that you prepared this treatise^
A. I recall that the Niseis was ordered to per-
form some kind of thing. I was ordered to analyze
some news so I said: '^This kind of news is no
good, this kind of news is all right," and I sub-
mitted it to General Headquarters, I think, but
it was not
Q. Was this prepared while you were working
at Camp Bunka?
A. That's right. I recall that now, yes.
Redirect Examination
By Mr. Tamba:
Q. Is your name Ikira Namikawa?
A. My name could be read like that.
Recross-Examination
By Mr. Storey:
Q. Does your name appear on the cover of that
book in Japanese characters, and I am referring
to Government's Exhibit 1 in the deposition?
Mr. De Wolfe: I object to that as incompetent,
irrelevant and immaterial.
The Court: Sustained.
(A. Yes (indicating Japanese characters on the
cover of the exhibit). When I was arrested and
beaten up Kempei tai ordered me to cooperate
with the war effort, otherwise I would be thrown
vs. United States of America 603
(Deposition of Tamotsu Murayama.)
into prison. If anything happened I could not
support my wife and children so it was part of
my duty assigned to.) [49]
Q. That is your work there in front of you
(indicating Government's Exhibit ^^1'' in this depo-
sition) ?
A. I didn't say this is most of the work, but
this is some work I was ordered to do.
Q. That is some of the work you were ordered
to do? A. Yes.
Redirect Examination
By Mr. Tamba:
Q. Is that book all your work or other people's
work?
Mr. DeWolfe: I object to that as incompetent
and immaterial.
The Court: Objection sustained.
(A. English part of the book was Radio Tokyo's
work, and Japanese part — I was ordered to put
in my own comments and in order to help P.O.W.
and other boys I had to describe some how.)
Q. After January, 1945, after you were removed
from Camp Bunka, did you stay around Radio
Tokyo? A. Yes.
Q. Until you were drafted? A. Yes.
Q. Counsel has offered Government's Exhibit
1, and I am turning from the left of the book
toward the front (indicating Exhibit 1), where
there are a number of Japanese characters. Who
w^rote these characters?
604 Iva Ikuko Toguri D^ Aquino
(Deposition of Tamotsu Murayama.)
A. I did, and it was mimeographed.
Q. Then the following pages — then I note here
on page 4 there is an English translation. Who
wrote that translation?
A. English was original, so Radio Tokyo broad-
cast.
Q. In other words, you did not translate any
of the English contained in this book, is that cor-
rect?
Mr. DeWolfe: I object to that as immaterial,
improper, incompetent.
The Court: Read that again, please.
(Question reread.)
The Court: I will allow it.
A. I was ordered to criticize radio propaganda
and it was done. [50]
Q. And it was done in Japanese characters by
you?
Mr. DeWolfe: Objected to as incompetent and
immaterial.
The Court: Sustained.
(A. Yes, because I was ordered to write it.)
Q. None of these translations were your transla-
tions ?
Mr. DeWolfe: I object to it as incompetent.
The Court: Objection sustained.
(A. It is not and some of the information came
from army officers. Imperial Headquarters officers
ordered me to write in Japanese so many parts. I
vs. United States of America 605
(Deposition of Tamotsu Murayama.)
wrote according to Japanese army officers' orders.)
Q. Who is Akira Namikawa?
A. Oh, Akira Namikawa, he is Information
Board official who collaborated with Major Tsunei-
shi for all this war propaganda.
Q. This book which has been referred to as Gov-
ernment's Exhibit ^^1" has nothing to do with re-
gard to any testimony you have given with regard
to treatment of prisoners of war in Camp Bunka"?
A. It has not. I risk my life to help POWs dur-
ing wartime. [51]
Q. Was that written from day to day, or
A. Well, maybe, it is a long time. It covers some
time and Army officers give me Japanese notes,
and say, '^here, put this in, and put this in, to in-
spire Radio Tokyo boys in connection with your
radio propaganda."
Q. Who were the Japanese army officers, if you
recall ?
A. I don't recall their names though, two, three
officers handed me notes and I write in.
Q. What rank, if you recall, did these officers
hold? A. Some captains, some majors.
Q. Did Tsuneishi ever direct you in a publica-
tion of this kind *?
A. Yes, Major Tsuneishi asked me some points
to be emphasized, some civilians brought in some
papers, too. I compiled altogether.
606 ' Iva Ikuko Toguri V Aquino
(Deposition of Tamotsu Murayama.)
Recross-Examination
By Mr. Storey:
Q. These officers whom you have just mentioned
called on you to advise them in their propaganda
work"?
A. No, they sent papers to the Bunka Camp
and it was on the table — on my table
Q. What were you supposed to do with this
material when it came % A. I put together.
Q. Analyze it?
A. I took together and some Japanese parts I
put in where they want.
Q. Did you make any recommendation, or ad-
vise them in any way concerning propaganda?
A. Well, I put in, ''this is all right, or no good.''
Mr. Collins : Was there an exhibit attached ?
Mr. Tamba : There is a book exhibited.
Mr. DeWolfe: I did not understand counsel to
offer this in evidence. I object to it being admitted
in evidence as incompetent, irrelevant and imma-
terial, some book he wrote, and as having nothing
to do with the issues in this case.
Mr. Collins: I have not read the book, if Your
Honor please. The book seems to be in Japanese
and also in English.
Can you tell me, Mr. Tamba, is there a compete
translation of this Japanese attached.
Mr. Tamba: I would not know. That book was
presented at the deposition by Mr. Storey. He of-
fered it, and that is the first time I had seen it. [53]
vs. United States of America 607
(Deposition of Tamotsu Murayama.)
Mr. De Wolfe : If counsel is offering it, we object
to it.
Mr. Collins: It was offered in evidence at the
deposition itself, and if you are raising objection
to it, I suggest you make your objection now.
Mr. De Wolfe: I have already objected.
The Court: The objection will be sustained. Let
it go out and the jury will disregard it for any pur-
pose of this case.
Mr. Collins: I will read the certificate that is
attached to this deposition.
(Certificate read.)
/s/ TAMOTSU MURAYAMA.
Japan,
City of Tokyo,
American Consular Service — ss :
I do solemnly swear that I will truly and im-
partially take down in notes and faithfully tran-
scribe the testimony of Tamotsu Murayama, a wit-
ness now to be examined. So help me God.
/s/ MILDRED MATZ.
Subscribed and sworn to before me this 9th day
of May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 834a; Tariff No.. 38; No fee pre-
scribed.
608 Iva Ikuko Toguri D^ Aquino
DEFENDANT'S EXHIBIT ^^I^' IN
MURAYAMA DEPOSITION
Capt. Edwin Kalbfleish, Jr.
122 Drake Avenue
Webster Groves 19, Mo.
August 12, 1947
Dear Prince Ri:
I find this a rather difficult letter to write. Your
Highness. For when one attempts to thank another
for saving his life, it should be done only in person.
Printed words are too impersonal to adequately
convey the feeling which is behind them; only the
spoken word can express the true feeling.
But since many miles separate us, I must use this
method instead of the personal one.
It was only early this year that I learned through
my good friend Tamotsu Murayama, that it was
your intervention which prevented me from facing
a firing squad or a hangman's noose. When I paced
away my time in solitary confinement at Shinegawa
Camp, I felt that my case was almost hopeless.
However, my trust still rested in the mercy of the
great God who would not allow my life to be snuffed
out for having tried to help my fellow prisoners of
war. And when I was marched out of that camp, I
knew that He had intervened to preserve my life.
I did not know how He had done it. But I was
positive that my life had been spared because
Murayama-san had been able to put my case before
someone with great authority.
vs. United States of America 609
That someone was you, Your Highness. I can
only say, ^Hhank you,'' for I know of no other
words to express more sincerely what I feel. Not
only do I thank you, but also my parents and my
wife thank you. For you made it possible for me to
return to them and to once again enjoy family hap-
piness.
I sincerely hope that some day we may meet, and
I may tell you this in person. I shall always be
deeply grateful for your beneficence.
Sincerely and respectfully,
/s/ EDWIN KALBFLEISH, JR.
/s/ THOMAS W. AINSWORTH,
American Vice Consul.
[American Consular Service Seal.]
610
^'^WtMm^am^,
Dear l!r Uirmyaiaa,
^ TTe have juat ,haard that your tiaby U lU, aai
all of-UB fael t ha f .v e "■ : ould like t-^- help-you in your moment of
sufferliiii,
others iiopinii ai4,^^ai^ 1«JE <,»t4T; you that yoxii^ cli^^vtil soon
get vell^afialn, ^en you have thttt knorledgei \ .»^ ; y ,
As vie do not forget how 4ood'TOU'%ave been to
Ms in t^e past, ite \vant ^u to know that pttr thou£Lts are v.ith
you at this monent and that we fieel that the illness of your
-. oMl'' Is our concern as It la your s.
And •ve.hope that this* little note - ill do
something to ease your sorrow and make you hope, as we hope, •
thdt' your trochlea will soon roll away and tti&t in a short.. tira
your baby will be back Mth its f^.ther again, healthyand- -.ell,
aaa Just as it was before. (}Ce»iutlL •niJu»*-a^\ .
./. ."^ ^^''^ ^^^^ sinoorely, fU^tlk^^dbjuJU^
^^ / / • J
-"^^^JiMfaiTANT^S EXHIBIT ♦jg, in IfflHAyAMA DEPoftlTIOH'
vs. United States of America 611
Japan,
City of Tokyo,
American Consular Service — ss:
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March
22, 1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D 'Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
Tamba, counsel for the defendant Iva Ikuko Toguri
D Aquino I examined Tamotsu Murayama, at my
office in Room 335, Mitsui Main Bank Building,
Tokyo, Japan, on the ninth day of May, A.D. 1949,
and that the said witness being to me personally
known and known to me to be the same person
named and described in the interrogatories, being
by me first sworn to testify the truth, the whole
truth, and nothing but the truth in answer to the
several interrogatories and cross-interrogatories in
the cause in which the aforesaid stipulation, court
order, and request for deposition issued, his evi-
612 Iva Ikuko Toguri D' Aquino
dence was taken down and transcribed under my
direction by Mildred Matz, a stenographer who was
by me first duly sworn truly and impartially to take
down in notes and faithfully transcribe the testi-
mony of the said witness Tamotsu Murayama, and
after having been read over and corrected by him
was subscribed by him in my presence; and I
further certify that I am not counsel or kin to any
of the parties to this cause or in any manner inter-
ested in the result thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this 19th day of
May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal]
Service No. 943; Tarife No. 38; No fee pre-
scribed.
[Endorsed] : Filed May 23, 1949.
vs. United States of America 613
In the Southern Division of the United States
District Court for the Northern District of
California
No. 31712 R
UNITED STATES OP AMERICA,
Plaintiff,
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OF SUISEI MATSUI
Deposition of Suisei Matsui, taken before me,
Thomas W. Ainsworth, Vice Consul of the United
States of America, in Mitsui Main Bank Building,
Room 335, in Tokyo, Japan, under the authority
of a certain stipulation for taking oral designations
abroad, and upon order of the United States Dis-
trict Court, made and entered March 22, 1949, in
the Matter of the United States of America vs.
Iva Ikuko Toguri D 'Aquino, pending in the South-
ern Division of the United States District Court,
for the Northern District of California, and at issue
between the United States of America vs. Iva
Ikuko Toguri D 'Aquino.
The plaintiff, appearing by Frank J. Hennessy,
United States District Attorney; Thomas DeWolfe,
Special Assistant to the Attorney General, and Noel
Storey, Special Assistant to the Attorney General,
and the defendant, appearing by Wayne N. Collins
and Theodore Tamba.
The said interrogations and answers to the wit-
61,4 Iva Ikuko Toguri D' Aquino
ness thereto were taken stenographically by Mildred
Matz and were then transcribed by her under my
direction, and the said transcription being there-
after read over correctly to the said witness by me
and then signed by said witness in my presence.
It is Stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objections to the use of the
deposition, or any part of the deposition, by plain-
tiff, on the plaintiff's case in chief, shall be reserved
to the time of trial in this cause.
SUISEI MATSUI '
of Kamakura, Honshu, Japan, of lawful age, being
by me duly sworn, deposes and says:
Direct Examination
By Mr. Tamba :
Q. Mr. Matsui, the name Matsui is one which
you adopted for stage purposes? A. Yes.
Q. And you use that name all the time?
A. Yes.
Q. And your real name, the name you were born
under is what?
A. loi is family name. Seiei loi.
Q. And Mr. Matsui, you were born in Japan?
A. Yes.
Q. And received your education in Japan?
A. Yes.
Q. What school?
A. Wasuda University.
vs. United States of America 615
(Deposition of Suisei Matsui.)
Q. Did you attend any school in the United
States'? A. A few terms in Michigan.
Q. And you have been in the United States?
A. Yes.
Q. When was the first time you came to the
United States? A. That was 1925 sometime.
Q. Did you return to the United States later on?
A. Yes.
Q. When, do you recall?
A. I forget — about five or six years later.
Q. At the time of the Olympic games?
A. Yes.
Q. Were you the editor of Newsreel, a Japanese
newspaper ?
A. At the time when the Olympics was on I
edited Asahi newsreels.
Q. Then did you return to the United States
again ?
A. Yes, as an actor in Paramount Studio.
Q. And you were back and forth from Japan to
the United States, were you not, at that time ?
A. Yes.
Q. Have you ever been in any pictures in Holly-
wood? A. Yes.
Q. What pictures?
A. First was ^^Hell and High Water.'' No, first
one was '^Paramount on Parade," and second big
one was ''Hell and High Water," and a couple of
other short releases.
Q. What part did you take in ''Paramount on
Parade"?
616 Iva Ikuko Toguri D^ Aquino
(Deposition of Suisei Matsui.)
A. Master of ceremonies, and when the Panay
incident took place I went down to Hollywood to
reedit the film to pro-Japanese feelings, and Para-
mount called me back to reedit it pro- Japanese way.
The Court : Just a minute. The reporter is hav-
ing some difficulty. Speak up.
Mr. Tamba: I am sorry, Your Honor.
(Previous answer reread by Mr. Tamba.)
Q. Mr. Matsui, did you ever take part in any
radio shows ? A. Yes.
Q. Did you ever take part in the Frank Wata-
nabe radio script *? A. Yes.
Q. What station?
A. KNX Station — I was the double.
Q. Eddy Holden was Frank Watanabe?
A. Yes. I am Watanabe. He is too big for Jap-
anese, and I am his double.
Q. Now, when war broke out, Mr. Matsui, where
were you ?
A. I was sent by the Japanese army to Java.
Q. For what purpose ?
A. To take care of the broadcasting, maybe
publicity business.
Q. And you were in charge of the station there
for how many years? A. About three years.
Q. Then you were recalled to Japan later on?
A. Yes.
Q. For what purpose ?
A. To organize, to supervise radio programs, in-
cluding prisoners program here.
vs. United States of America 617
(Deposition of Suisei Matsui.)
Q. Let me ask you, did you have a prisoner of
war program in Batavia'? A. Yes.
Q. Will you please tell us what the prisoner of
war program was?
A. By army orders, in my station commentary —
so I must get acquainted with the other stations,
I mean enemy stations, so I started the war prisoner
hour. That is mainly Red Cross purposes. Prison-
ers can use their own communications.
Q. In other words, it was used only for the pur-
pose of having the prisoners broadcast messages
home ? A. Yes.
Q. And also to receive messages from home?
A. Yes, I get answers from prisoners' homes.
Q. I show you a document here, containing sev-
eral pages, and ask you what that is?
(Counsel hands paper to witness.)
A. That was the answer, which came from the
outside.
Q. To the prisoners of war there ? A. Yes.
Q. And did you deliver it to the prisoners of
war there ?
A. Yes. It was delivered by me. My money. I
paid for this copy.
Mr. Tamba :
(I offer this document in evidence as De-
fendant's Exhibit *'l" in Matsui deposition.)
Mr. DeWolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: What is it?
618 Iva Ikuko Toguri D' Aquino
(Deposition of Suisei Matsui.)
Mr. Collins: It is a document. I have not seen
it, Your Honor. It is attached only to the original.
Mr. Tamba: It has to do with prisoners of war
messages from the Java station.
The Court: Objection sustained.
Mr. Collins: No objection.
Q. Mr. Matsui, I show you this paper and ask
you what that is ?
(Document handed to witness by Mr.
Tamba.)
A. That is Christmas program.
Q. For American prisoners of war?
A. Yes.
Mr. Tamba :
(I offer this document in evidence as De-
fendant's Exhibit "2'' in Matsui deposition.)
Mr. DeWolfe: Objected to incompetent, irrele-
vant. It is undoubtedly Java, again.
Mr. Tamba: Yes, that is correct Mr. DeWolfe.
Mr. Collins: What are they, prisoner of war
messages %
Mr. Tamba: Yes, they are exhanges.
The Court: The objection will be sustained.
(Mr. Storey: No objection.)
Q. I now hand you another document and ask
you if it is the same as Exhibit ^^1"?
(Document handed to witness by Mr.
Tamba.)
A. Yes, broadcast froni Australia.
vs, TJyiited States of America 619
(Deposition of Suisei Matsui.)
Q. And those are messages to prisoners of war?
A. Yes, at Java camp.
Q. And you delivered those messages to the
prisoners of war? A. Yes.
Mr. Tamba:
(I offer this document in evidence as De-
fendant's Exhibit ^^3" in Matsui deposition.)
Mr. Storey: No objection.
Mr. De Wolfe: Objected to as incompetent, ir-.
relevant. The message is from Australia to prison-
ers in Java.
Mr. Tamba : That is correct, it is still Java.
The Court: Objection sustained.
Q. I show you this document and ask you what
that is?
(Document handed to witness by Mr.
Tamba.)
A. This is the same. I gave the prisoners a
chance to change a little and he write on the bottom.
Mr. Tamba:
(I offer this document in evidence as De-
fendant's Exhibit ^^4" in Matsui deposition.)
Mr. DeWolfe: Same objection, same kind of
document.
The Court: Same ruling. The objection will be
sustained.
Mr. Collins: No objection.
Q. I hand you another item and ask you what
that is.
620 Iva Ikuko Toguri V Aquino
(Deposition of Suisei Matsui.)
(Counsel hands document to witness.)
A. This is so-called camp newspaper. I received
it on short wave and sent down to the camp and
let them read this one.
Mr. Tamba:
(I offer this document in evidence as De-
fendant's Exhibit "b^'' in Matsui deposition.)
Mr. Storey: No objection.
Mr. DeWolf e : Objected to as immaterial, a Java
newspaper.
The Court: Objection sustained.
Mr. Collins: Is that what it is?
Mr. Tamba: Yes, this has reference to Java. I
think with the exception — ^yes.
Q. I hand you a document marked March 7,
1943, and ask you what that is.
(Counsel hands document to witness.)
A. Americans broadcasting to their country.
Mr. Tamba:
(I offer this document headed March 7, 1943,
as Defendant's Exhibit '^6" in Matsui deposi-
tion.)
Mr. Storey: No objection.
Mr. De Wolfe: Objected to as immaterial, Java
broadcasts.
The Court: Objection sustained.
Mr. Collins: Can you tell us just the nature of
that question.
vs. TJyiited States of America 621
(Deposition of Suisei Matsui.)
Mr. Tamba: That is in reference to Java. The
next one is Bunka, the next one that follows.
Q. Mr. Matsui, I hand you document dated
February 27, 1943, and ask you what that is.
(Counsel hands document to witness.)
A. This is a letter that they appreciate my
services for them in the camp.
Mr. Tamba:
(I offer this document in evidence as De-
fendant's Exhibit "1^\ in Matsui deposition.)
Mr. Storey: No objection.
Mr. De Wolfe: Objected to as immaterial.
The Court: Objection sustained.
Mr. Tamba : I will take it back, this is Java too.
Q. I hand you another document and ask you
what it is.
(Counsel hands document to witness.)
A. This is a list of war prisoners in Java.
Mr. Tamba:
(I offer this document in evidence as De-
fendant's Exhibit ^'8", in Matsui deposition.)
Mr. Storey: No objection.
Mr. De Wolfe: Objected to as immaterial, it is
Java.
The Court : Objection sustained.
Mr. Collins: Did that pertain to Java too, Mr.
Tamba %
Mr. Tamba: Yes, that is right.
622 Iva Ikuko Toguri D' Aquino
(Deposition of Suisei Matsui.)
Q. What became of the rest of your records, Mr.
Matsui?
A. I sent that one to headquarters of Japanese
army but that boat was sunk.
Q. Did you have any girls broadcasting at your
station in Java? A. Yes.
Q. And did they broadcast in the English lan-
guage? A. Yes, they did.
Q. What was the nationality of these girls who
broadcast there?
A. Indonesian boys and girls I used. All In-
donesian.
Q. You never compelled any prisoners of war to
broadcast any propaganda ?
A. You mean in Java or Japan?
Q. In Java? A. What do you mean?
Q. All the prisoners of war broadcast there on
your station were messages to their loved ones at
home ? A. Yes.
Q. And you were familiar with the rules of in-
ternational law for the treatment of prisoners of
war ? A. Yes.
Q. And you followed those rules always ?
A. Yes
Mr. De Wolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Objection sustained.
(A. Yes. The first time I even explained what I
meant to all the war prisoners in the camp when
they refused to write letters. Even the chaplain of
the camp refused to write letter to their own coun-
vs. United States of America 623
(Deposition of Suisei Matsui.)
try so I told him to ask permission from the boss
of the camp, and I waited for a few days. Then
they came to me and accepted. They write them-
selves a personal letter.)
Q. In other words, all they broadcast were per-
sonal messages to their loved ones? A. Yes.
Q. Your radio station was quite popular, was it
not, Mr. Matsui?
A. I think it was the best one in the whole oc-
cupied Japan. Only one station got the answer
from another station, so when the Japanese general
asked me to come and help the prisoners out over
here
Q. So you came to Japan, when, to take care of
the Prisoner Hour? A. I forget.
Q. 1943? A. December, 1943.
Q. And where did you report for duty?
A. First time I did to the late General Matsui.
Q. Did you eventually come to Camp Bunka?
A. Yes, as soon as I came back. I met Tsuneishi
in headquarters first time.
Q. Were you to be the supervisor of Camp
Bunka?
A. Tsuneishi did not tell me that way. I ex-
plained I was the supervisor or something but
Tsuneishi did not tell me like that way. I waiting
about one months, one months and a half waiting.
Then Tsuneishi called me and told me: ^^You go to
Surugudai, Bunka Camp to help."
Q. What was Bunka Camp called?
A. We called it Bunka Camp.
624 Iva Ikuko Toguri B' Aquino
(Deposition of Suisei Matsui.)
Q. Did it have any other name, Mr. Matsui?
A. Well,
Q. What does Surugudai mean?
A. Name of the area. That was the secret sta-
tion. Everybody called that station Surugudai
Bunka Kaikan. Bunka camp sometimes it is called
by the officers and soldiers. That was the old Bunka
Gakuin School so the people thought that was in-
stitution or something like that.
Q. It was not referred to as a prisoner of war
camp?
A. Nobody knows that, no. Very few^ people.
Even officers in the army they do not know.
Q. Did you talk with Tsuneishi later about the
prisoner of war program ? A. Yes, I did.
Q. What was said on that occasion between you
and him ?
A. My information — my opinions was like this.
The program which they had been doing looks like
very funny to me, because they name their pro-
grams as ^'Hinomaru Hour," that is Japanese
flag, and ^^ Tokyo Rose.'' So I told Major Tsunei-
shi: ^^this is one thing, if you want to let them
listen in better not use such Hinomaru Hour or
Tokyo Rose, such things.
Q. When you talked about Tokyo Rose, you
meant the Zero Hour?
A. Yes, Zero Hour. I first heard the name
*^ Tokyo Rose" after the war.
Q. What did Tsuneishi say to you?
A. He did not give me answer.
vs. United States of America 625
(Deposition of Suisei Matsui.)
Q. He didn't agree with you?
A. No, only
Q. What did you want the prisoners of war to
broadcast? A. Is my opinion that
Q. The same as in Java?
A. Yes, same as in Java, and tell them truth at
first. My opinion was tell them truths. Always tell
them truths if you want them to listen.
Q. When you talked with Tsuneishi about that,
who was present in the room, do you remember?
A. In headquarters, or Surugudai?
Q. In Surugudai?
A. He had me come to Surugudai. Very often
he called everybody to headquarters in Ichigaya.
Q. When you talked to him about it, did you
discuss it at headquarters? A. Yes.
Q. Who was there?
A. Only Tsuneishi and me.
Q. Do you know a man by the name of Uno?
A. Yes, I know Buddy.
Q. Where did you meet him?
A. Buddy Uno, I know him very well first time
I went to Paramount. He came to meet me at the
station.
Q. Then did you see him at Headquarters or
Bunka Camp?
A. Yes, afterwards when I went to Bunka Kai-
kan.
Q. Was he always wearing a uniform? And
carrying a sword? A. Yes.
626 Iva Ikuko Toguri D' Aquino
(Deposition of Suisei Matsui.)
Q. Was Tsuneishi always wearing a uniform
and carrying a sword?
A. Yes, but Buddy sometimes changed in civilian
clothes.
Q. When you were in Java did you hear pro-
grams broadcast from Tokyo ? A. I think so.
Q. How many did you hear?
A. Well, not so often. A couple of times, be-
cause I like to get Japanese commentary because
we were to go with the Japanese headquarters plans
because at that time communication was not so
good by enemy airplanes going over and sometimes
no telegrams and sometimes no letters or orders
from headquarters arrived to Java so I liked to get
Tokyo commentary.
Q. Did you hear women broadcasting from
Tokyo at that time?
A. Not so often. A couple of times I think.
Q. Did Japan have other stations, besides Da-
ta via and Tokyo for their broadcasting?
A. Yes, all parts of occupation area.
Q. Did you know some of the stations ?
A. Singapore, Saigon, Java. In Java we have
three.
Q. Would Tsuneishi let you change the pro-
gram ?
A. No, he did not like to have me over there.
Q. How long were you at Bunka?
A. All through, nearly a year, but actually I
worked about a half year.
Q. Then w^hat happened?
vs. United States of America 627
(Deposition of Suisei Matsui.)
A. Well, they sent me to Shanghai.
Q. Was that after you beat up somebody for
stealing from a prisoner of war?
Mr. DeWolfe: Objected to as immaterial, in-
competent.
The Court: Objection sustained.
(A. Yes.)
Q. Who?
Mr. DeWolfe : Object to that as incompetent.
The Court: Objection sustained.
(A. Buddy.)
Q. Why?
Mr. DeWolfe: Objected to as irrelevant.
The Court: Objection sustained.
(A. I don't know the first time. I don't know
what happened, but I see what happened in the
camp, but the rest of the time I see he hit the pris-
oners in the studio, and sometimes Buddy tried to
steal prisoners' personal belongings so I tell him:
^^Give it back," and he refused, and he said: ''I
don't know you," he said that to me, so I tell him:
^*You said a mouthful," and I throw him down, and
tell him to send the personal belongings back. He
refused.)
Q. Where did that encounter with Buddy hap-
pen?
Mr. DeWolfe : Object to that as incompetent and
immaterial.
The Court: Objection sustained.
(A. I forget the date.)
Q. I mean, where?
628 Iva Ikuko Toguri D' Aquino
(Deposition of Suisei Matsui.)
Mr. DeWolfe: Object to that, incompetent, sir.
The Court: Objection sustained.
(A. In the small monitor room, what you call
monitor room.)
Q. In Radio Tokyo?
Mr. DeWolfe: Same objection.
The Court: I will allow him to answer.
A. In JOAK, that is broadcasting station in
Tokyo.
Q. After that you were sent to Shanghai?
Mr. DeWolfe: Object to that as immaterial.
The Court: Objection sustained.
(A. After that Tsuneishi and other officers
called me up to headquarters and asked me what
happened. Some of the other officers, they try to
scare me, send me down to the gendarme, and
finish up.)
Q. Did Tsuneishi take part in the direction of a
certain moving picture, ''Shoot That Flag?''
A. Yes.
Q. Whose idea was that?
A. I think it was Tsuneishi 's because he planned
to make the Java prisoners in a picture while I
was not in Java.
Q. Did you have an argument with Tsuneishi
about that picture? A. Yes, I did.
Q. What did you tell him?
A. He did not listen to me.
Q. Did you teU him it was against international
law to use prisoners of war in the film ?
Mr. DeWolfe: Object to that as incompetent,
vs. United States of America 629
(Deposition of Suisei Matsui.)
irrelevant and immaterial, talking about Java again.
The Court: Yes, objection sustained.
(A. He tried to send that film to Australia by
airplane and tried to throw the film down to some
part of Australia, but I stopped it.
Q. How did you stop it?
Mr. De Wolfe: Object to that for the same rea-
son, sir.
The Court: Same ruling.
(A. I told him to stop it. I don't know whether
he stopped it, or not, but, anyway, I told him to
stop it.)
Q. Where was that picture made, Mr. Matsui?
Mr. DeWolfe: Same objection.
The Court: Objection sustained.
(A. It was made in Manila.)
Q. Were prisoners of war used in that picture?
Mr. DeWolfe: Object to that as irrelevant, in-
competent.
The Court: Objection sustained.
(A. Many war prisoners, yes.)
Q. You had know^n Tsuneishi, or met him, be-
fore you came to Japan to take over Bunka Camp ?
A. No.
Q. You met him?
A. I didn't know him before.
Q. Did you meet him in Sugamo or Manila?
A. Yes, once I met him in Manila. I knew him.
After I joined the army I know him. Before that I
don't know him.
Q. When you were in Bunka did the prisoners
630 Iva Ikuko Toguri B' Aquino
(Deposition of Suisei Matsui.)
of war ever tell you they did not want to broad-
cast*?
Mr. De Wolfe: Object to that as incompetent,
irrelevant and immaterial, nothing to do with the
issue of this case.
The Court: Objection sustained.
(A. Very often. They complained about writing
script. They told me they did not like to take that
kind of job.)
Q. Did you tell Tsuneishi that? Did you com-
municate that information to Tsuneishi, if you re-
member ?
Mr. De Wolfe: Same objection, if it please the
Court.
The Court : Same ruling.
(A. Well, through Mr. Fujimura.)
Q. Do you remember a blackboard at the Bunka
Camp where the work was written down for the
prisoners to do. A. Yes, I do.
Q. Where was that blackboard?
A. Over this desk, written on
Mr. De Wolfe: Object to that, immaterial, in-
competent.
The Court: Objection sustained.
(A. Over this desk, written on the blackboard
just like for the grammar school children. '^To-
day you must write this topic," and so and so, and
Buddy sitting in the center of the chair near the
wall, and he examined all scripts which came up
from the prisoners.)
Q. Who started Bunka camp ?
vs. United States of America 631
(Deposition of Suisei Matsui.)
A. I don't know.
Q. But, anyway, it was started by the time you
got there ?
Mr. De Wolfe : Objected to as immaterial, incom-
petent.
The Court: Objection sustained.
(A. Yes, but, anyway, Tsuneishi was boss of
that kind of line of business. We called it, what
you say, ^^ secret mission of propaganda," or some-
times translated )
Q. What was the Japanese translation 1
Mr. De Wolfe: Object to that as immaterial, in-
competent.
The Court: Objection sustained.
(A. Boryaku sen den. Sen den is ^^propa-
ganda." Boryaku is ^4ntriguish."
Q. Mr. Matsui, were the prisoners of war well
fed at Camp Bunka?
Mr. De Wolfe: Object to that as not germane to
the issue here, incompetent, irrelevant, immaterial.
The Court: Objection sustained.
(A. No. They all suffer from some kind of ill-
ness.)
Q. Do you remember some of the illnesses suf-
fered by the prisoners of war?
Mr. DeWolfe: Object to that as irrelevant and
incompetent.
The Court : Same ruling, objection sustained.
(A, Some of the prisoners complained about
lessened eyesight, lack of vitamin.)
632 Iva Ikuko Toguri D' Aquino
(Deposition of Suisei Matsui.)
Q. Did you buy vitamins for them out of your
own pocket?
Mr. DeWolfe: Objected to as incompetent, im-
material.
The Court: Objection sustained.
(A. Yes, I did, often. Some of the prisoners'
hair came out; some of the prisoners complained
about catching cold, like t.b.)
Q. Did some of them have boils or skin erup-
tions ?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. Yes.)
Q. Were you at Camp Bunka when Tsuneishi
made a speech, ordering the prisoners of war to
broadcast?
Mr. DeWolfe: Object to that as immaterial.
The Court: Objection sustained.
(A. Yes.)
Q. Who was with Tsuneishi at that time?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. Tsuneishi and Buddy, and always Buddy
translated Tsuneishi 's speech.) (page 14, lines 9-
10.)
Q. Was Tsuneishi rattling his sword that day?
Mr. DeWolfe : Object as immaterial.
The Court: Objection sustained.
(A. Always he carried his sword.)
Q. Did he shake it?
Mr. DeWolfe: Saipe objection.
vs. United States of America 633
(Deposition of Suisei Matsui.)
The Court: Same ruling.
(A. Holds it on top, something like that. (Wit-
ness holds his hand across his chest, as if holding
something there.) He was very short-tempered,
always moving around.)
Q. Do you remember what that order was like?
What did he say in that order ?
Mr. DeWolfe: I think that is not the best evi-
dence, incompetent.
The Court: Objection sustained.
(A. No, when I was there, I cannot hear what
they say. Anyway, Tsuneishi had a speech and
Buddy translated and just a few minutes I was
standing and watching, when I went to the water
closet.)
Q. Did you ever tell anybody at the camp that
the prisoners of war were not properly fed?
Mr. DeWolfe : Object to that as hearsay, incom-
petent, irrelevant, immaterial.
The Court: He told someone; objection sus-
tained.
(A. I didn't ever say.)
Q. Did you ever report to Tsuneishi or Uno that
they were not getting enough to eat ?
Mr. DeWolfe: Object to that as incompetent,
irrelevant, immaterial, nothing to do with the issue
in this case.
The Court: Objection sustained.
(A. Well, I didn't tell them because I thought
there was no use because I buy bread and beans
634 Iva Ikuko Toguri V Aquino
(Deposition of Suisei Matsui.)
and secretly I give them when they come down to
the station.)
Q. Did you know Major Charles Cousens of the
Australian Army*? A. Well, I met him.
Q. Where did you meet him "?
A. Well, I remember in Singapore, or in the
Tokyo station.
Q. Under what circumstances did you meet
Major Cousens in Singapore?
A. I remember by order of the headquarters.
Q. Yes, tell us about it.
A. To find out some fellow who speaks good
English, and who will be reliable to read and write,
and who was maybe, active in newspaper or writ-
ing, or something.
Q. And you interviewed Major Cousens ?
A. Well I saw — before I came back over here
to Japan, I did not know which one was selected,
I was in a couple of offices, I saw them in Singa-
pore
Q. Anyway, you recommended Cousens?
A. Yes.
Q. Did you tell Major Cousens that he was going
to be selected to broadcast ? A. No.
Q. And the circumstances under which he ar-
rived in Japan, you did not know? A. No.
Q. Do you know Iva D 'Aquino, also known as
Iva Toguri?
A. Well, I did not know which is which, but
very often I met the girls who broadcast in the sta-
PS. United States of America 635
(Deposition of Suisei Matsui.)
tion when they came out from the broadcasting
room.
Q. Did you ever hear the Zero Hour broadcast?
A. Not in the same room. In the other room.
Q. Did you ever see the Zero Hour broadcast?
A. No, it is quite secret. Was quite secret.
Q. But, anyway, you saw several girls come out
of the room?
A. No, not same time; not same day, so I think
Tokyo Rose was not the one girl.
Q. You thought there were several girls?
Mr. De Wolfe: Object to that as incompetent,
calling for the conclusion.
The Court: What he thought may go out; the
objection will be sustained.
(A. Several girls took her place.)
Q. Mr. Matsui, did you ever see Buddy TJno in
the broadcasting station?
A. Very often. Every day.
Q. What was he doing there?
A. Every day he brought the prisoners from
Bunka Camp to the station and watched what they
did.
Q. Was he standing or sitting near the micro-
phone ?
A. Just close to the microphone. He sat and
examined the paper word by word.
Q. Did you tell him he should not do that?
A. I told him once or twice but he did not listen
anymore.
Q. What did he say?
636 Iva Ikuko Toguri D' Aquino
(Deposition of Suisei Matsui.)
A. '^You are not the authorized person/' he
told me. ' ' What right you have ? ' '
Q. Did he tell you who was the authorized per-
son?
Mr. De Wolfe: Objected to as incompetent, this
is not the Zero Hour program, it is another pro-
gram. That stopped at 12:00 o'clock, according to
the other testimony.
Mr. Collins : I don't know that is
The Court: Same ruling.
(A. ^'I was ordered from Tsuneishi".)
Q. That is what he said ?
Mr. De Wolfe: Objected to for the same reason.
The Court: Same ruling.
(A. Yes, ''so I am boss here", he told me, so.)
Q. In other words, he told you Tsuneishi told
him to do that "?
Mr. DeWolfe: Objected to for the same reason.
The Court: Objection sustained.
(A. Yes. Then I told him I was ordered by
higher ranking officer. I told him, but Buddy says
he did not care who they are.)
Q. In other words, Tsuneishi would not let you
take charge of the camp, is that correct ?
Mr. DeWolfe: Object to that, incompetent, ir-
relevant and immaterial.
The Court: Objection sustained.
(A. No.)
Q. Did any of the prisoners of war out there
voluntarily broadcast, I refer to Camp Bunka?
Mr. DeWolfe: Object to that as irrelevant, im-
material.
vs. United States of America 637
(Deposition of Suisei Matsui.)
The Court: Objection sustained.
A. Never. Always complained. I think I have
the good proofs, the letters. That shows everybody
asked me to deliver to the General to stop this.
They did not like to write.)
Q. I have here some notes you gave me and ask
you if that is what you are referring to? (Paper
handed to witness by Mr. Tamba) .
Mr. De Wolfe: Object to that irrelevant, incom-
petent. It has nothing to do with the Zero* Hour
program — prisoner of war messages.
The Court: Objection sustained.
(A. Yes, this is the prisoners' hand-writing.
This is secretly handed over to me from Tamotsu
Murayama.)
Mr. Tamba:
(I offer this paper, containing two messages,
dated 29 February 1944 (on one sheet), signed
'^Bucky" Henshaw and Edwin Kalbfleish, Jr.,
as defendant's Exhibit ^'9" in Matsui deposi-
tion.)
Mr. Storey: No objection.
Mr. DeWolfe: Objected to as incompetent, ir-
relevant, immaterial, hearsay. Henshaw and Kalb-
fleisch are both here and have been subpoenaed as
witnesses. Not the best evidence.
The Court: Submitted?
Mr. Collins : Yes, your Honor.
The Court: Objection sustained.
(A. I had many letters but I lost them.)
638 Iva Ikuko Toguri B' Aquino
(Deposition of Suisei Matsui.)
Q. You had many letters but you no longer have
them'?
A. Yes, because I was not home for many years
— at home. I was in Shanghai.
Q. Well, Mr. Matsui, Major Tsuneishi had con-
siderable power regarding broadcasting of the prop-
aganda, is that correct %
Mr. DeWolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Objection sustained.
(A. Yes, only one. He can do anything. What-
ever he want, so far as the publicity is concerned,
including the broadcasting, and publicity, and sign
posters, and motion pictures and books. Everything
what was under his influence.)
Q. Did you ever hear of the broadcast of the
Shinto prayer over the radio ?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant.
The Court: Objection sustained.
(A. Yes, that was a very funny one.)
Q. Did you tell them it was very funny?
Mr. DeWolfe: Objected to as immaterial.
The Court: Objection sustained.
(A. Yes. I did not know who made that one,
but I found out when they broadcast, just before
American broadcast start they get out comedians
like me, and Tokogawa Musesawa, and Sojin Kam-
ian and other fellows.)
Q. What did they sound like, these prayers?
Mr. DeWolfe: Same objection, sir.
vs. United States of America 639
(Deposition of Suisei Matsui.)
The Court: What did they sound like^ What
was that?
Mr. DeWolf e : Shinto prayers.
The Court: Objection sustained. We will now
take an adjournment until 10 o'clock tomorrow.
The jurors may be excused.
(A. Sometime just before the American com-
mentary started they make sound like this (witness
makes wailing sounds). They thought that would
scare the enemy station or let the enemy station
have some interest in the coming program. Very
silly thing, I thought. They found it out, I think.
He said: ^'Not silly". Maj. Tsuneishi was crazy
I think.)
Q. Mr. Matsui, do you remember when the Swiss
Government asked permission to visit the. prisoner
of war camp?
Mr. De Wolfe: I object to that as immaterial
and incompetent.
The Court: Objection sustained.
(A. Yes, I read in the Japanese paper, I re-
member. First time Japanese Government refused
to be investigated at the camp but later on I re-
member I saw the Swiss Consul said everything
okay. )
Q. Did that include Bunka Camp?
Mr. DeWolf e: Same objection.
The Court: Same ruling.
(A. Not included.)
Q. Why?
Mr. De Wolfe: Same objection, irrelevant.
640 Iva Ikuko Toguri D' Aquino
(Deposition of Suisei Matsui.)
The Court: Objection sustained.
(A. It was a secret place.)
Q. And the Swiss did not know whether it
existed *?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. No, even that include the Swiss Consul, so
he say okay, and I think some of the Japanese
superiors asked them to write that to the newspaper
office. They were so powerful, you cannot imagine.
One of the staff officers, when we met in the news-
paper office, he said he did not like to have the
English sign on the glass window, so if the news-
paper office take that sign off — I could let anybody
to break that glass window. I think maybe one
hundred or two hundred yen if I gave a gangster
on the street they come to break that glass easily.
This kind of thing they can easy say in that time.
Everybody went crazy.)
Q. Who was Mr. Ikeda'?
Mr. DeWolfe: Go ahead.
A. The son of a Marquis, or something.
Q. Was he in Camp Bunka under Tsuneishi?
A. Yes.
Q. What did he do?
Mr. DeWolfe: Object to that as immaterial.
The Court: You may indicate for the purpose
of the record the purpose of the testimony.
Mr. Collins: I think his duties, what his duties
were,
The Court: Objection sustained.
vs. United States of America 641
(Deposition of Suisei Matsui.)
(A. Cooperate with Buddy Uno.)
Q. Incidentally, they did not like you there, the
Japanese ^.
Mr. De Wolfe: Object to that as immaterial, too
general.
The Court: Objection sustained.
(A. Ikeda and Buddy were so intimate, so
everything happened in the Bunka Camp through
Ikeda reported to Tsuneishi, because Buddy could
not move — always stick to the camp, see.)
Q. Did Tsuneishi call you pro-American?
Mr. De Wolfe: I object to that as immaterial,
incompetent.
The Court: Objection sustained.
(A. Yes.)
Q. Tsuneishi was responsible to just one gen-
eral, wasn't he, Mr. Matsui?
Mr. De Wolfe: Same objection, Judge.
The Court : Same ruling.
(A. Kind of a line, so he had the superior gen-
eral.)
Q. Who was that general, if you know his name?
Mr. DeWolfe: Same objection, sir.
The Court: Objection sustained.
(A. I think General Arisuya.)
Q. Tell me this, were the Japanese staff officers
familiar with international law, regarding Japanese
I)risoners of war, that is the treatment of American
prisoners of war by the Japanese ?
Mr. DeWolfe : Object to that as calling for hear-
say, conclusion, incompetent.
642 Iva Ikuko Toguri D' Aquino
(Deposition of Suisei Matsui.)
The Court: Objection sustained.
(A. I don't think they did.)
Q. Did you ever talk with Tsuneishi about inter-
national law and the treatment of prisoners of war ?
Mr. De Wolfe: Object to that, immaterial, incom-
petent, hearsay.
The Court: Objection sustained.
(A. Sometimes they told me they can neglect
anything. '^We are fighting so we can neglect any-
thing." They did not like my international law
business.)
Q. I hand you a document and ask you what
that is. (Document handed to witness by Mr.
Tamba.)
Mr. DeWolfe: Go ahead.
A. This is a copy of the treatment of the war
prisoners.
Q. Where did you get that document?
Mr. DeWolfe: Go ahead.
A. This one I had made a copy in Java in the
Batavia library.
Q. You brought that to Japan when you came
to take over the supervision of Camp Bunka"?
Mr. DeWolfe: Object to it as immaterial.
The Court: Objection sustained.
(A. I translated this one and sent it to head-
quarters here.)
Q. Headquarters in Japan?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. Yes, and other copies of translation I gave
vs. United States of America 643
(Deposition of Suisei Matsui.)
to the Java camps. There are many camps in Java.
Very often in the camps they had a big argument.
Every time they ask me to come down to settle. I
took that copy to the Japanese officers.)
Q. So they would know what to do?
Mr. DeWolfe: Same objection, sir.
The Court: Objection sustained.
(A. Yes.)
Q. That was for camps besides Batavia?
Mr. DeWolfe : Object to that as calling for hear-
say, incompetent, irrelevant, immaterial.
The Court: Objection sustained.
(A. That was in Java, not here. Here all camps
under Tsuneishi's influence so I cannot do anything.
Cross-Examination
By Mr. Storey:
• Mr. DeWolfe: The cross-examination is not of-
fered by the United States.
Mr. Collins: The defendant will offer the cross-
examination.
(Thereupon the cross-examination of the
above-entitled deposition was read, the ques-
tions being read by Mr. Collins, the answers by
Mr. Tamba.)
Q. Was the Swiss Government the prote-cting
power for American interests in Japan during the
war?
Mr. DeWolfe: Object to it as immaterial.
The Court: Objection sustained.
644 Iva Ikuko Toguri D' Aquino
(Deposition of Suisei Matsui.)
(A. I think so, but I am sorry to say that,
frankly, they did not work hard during the war.
Not work so very much. Japanese Army too
strong.)
Q. Did any prisoners of war at Camp Bunka
ever request you to get in touch with their pro-
tecting power for them?
Mr. De Wolfe: Objected to as irrelevant.
The Court: Objection sustained.
(A. They are afraid to do so at the beginning.)
Q. Did they ever request you to get in touch
with the Swiss Government?
Mr. DeWolfe: Objected to as hearsay, incom-
petent.
The Court : Objection sustained.
(A. No, they did not tell me. Just I tried to
through Japanese army — let Japanese army do that.
Not yet from the prisoners. War prisoners asked
through me and sometime asked Mr. Maruyama and
told Major Tsuneishi to find out how he can do with
the Swiss Consulate.)
Q. Did you pass that information on to Tsun-
eishi'?
Mr. DeWolfe : Object to that as incompetent, ir-
relevant and immaterial.
The Court: Objection sustained.
(A. Yes.)
Q. What did the prisoners ask you to do "? What
did they ask you to do 1
vs. United States of America 645
(Deposition of Suisei Matsui.)
Mr. De Wolfe : Obje<3t to that as hearsay, incom-
petent.
The Court: Objection sustained.
(A. Send them back to the camps they belonged
before.)
Q. So it had nothing to do with the protecting
power?
Mr. DeWolfe: Same objection, sir.
The Court: Same ruling.
(A. No. They were so scared so they cannot tell ;
they cannot write this kind of letter from prisoners
to me was very risky business. (Witness refers to
defendant's exhibit ^^9.'') They were so scared.
Sometimes one of the prisoners disappeared. Rest
of the prisoners thought he was killed or something
in the camp. Even in the studio Buddy did not like
to talk to the prisoners. Watched them.)
Q. Was any propaganda broadcast over your
radio station in Java?
Mr. DeWolfe: Objected to as irrevelant, incom-
petent.
The Court: Objection sustained.
(A. Well, all propaganda was ordered from
headquarters, like this way. Order come from the
headquarters. That means Tsuneishi. He ordered
all stations — occupied stations — this week you to
this, coming week take up the Ghandi case or
Mussolini case.)
Q. So propaganda was broadcast over your sta-
tion in Java ?
Mr. DeWolfe: Same objection, sir.
646 Iva Ikuko Toguri D' Aquino
(Deposition of Suisei Matsui.)
The Court: Objection sustained.
(A. That script came from headquarters. The
rest of the time we rebroadcast news and the per-
sonal letters.)
Q. Prom the Japanese standpoint, what was the
purpose of sending these prisoners' of war messages
over the air?
Mr. De Wolfe: Object to that as calling for a
conclusion, incompetent, irrelevant and immaterial.
The Court: Objection sustained.
(A. The first time, if I wanted to get acquainted
with the enemy station I have to give something.)
Q. In other words these prisoner of war mes-
sages were listener bait so people would listen to
your station?
Mr. De Wolfe: Same objection.
The Court: Same ruling.
(A. I don't think it was bait, or something, be-
cause I like to do something to the prisoners be-
cause they were so poor. They have no way of com-
munication, so-so, every time I tell war prisoners
they can do anything. If they did not want to use
my station they can )
Q. In other words, this was a kind of a chari-
table practice on the part of the Japanese Govern-
ment ?
Mr. De Wolfe: Objected to as irrelevant, imma-
terial, incompetent.
The Court: Objection sustained.
(A. Not the Japanese Government idea. My own
idea. Not the government. So I was sometimes
vs. United States of America 647
(Deposition of Suisei Matsui.)
called to headquarters by Tsuneishi and other viola-
tions for my station.)
Q. What did you mean when you said you
wanted other stations to get acquainted with your
station ?
Mr. De Wolfe: Object to that as incompetent, ir-
relevant and immaterial.
The Court: Objection sustained.
(A. They refused to follow the international law
and so I tried to fight against them, the Japanese
authorities who refused my suggestion so I told
him, ^'This is my hour." If they did not like it —
so I explained to the prisoners: ^^You can use an-
swer, but if you write against Japanese or if you
talk against Japanese, maybe this practice will be
stopped and I will be called," and then they cannot
use it. '^So, I hope you use your brain and use
whatever you like." So I give that hour to the
prisoners. Every script that came up to me, without
reading, I give them censor's pass, and headquarters
thought that was bait, something for propaganda,
so-so, so, afterwards, he call me to Tokyo to co-
operate with the headquarters or Radio Tokyo hour
to let the other stations listen in. They wanted to
use my name. I have idea may pass for the hu-
manity sake. Everybody knows that.
When the big trouble took place in Singapore I
w^ent there and all soldiers finished this script. I
have it. I used to censor the scripts in Java and
give them to the prisoners to take back to their
countries as souvenirs. When I went to Singapore
64S Iva Ikuko Toguri D' Aquino
(Deposition of Suisei Matsui.)
from Java, I said: ''This is entirely for Red Cross
purposes.'' Some of the officers came from Java,
whom I did not remember. He took out the script
which I sent and he told to the other prisoners:
*'Mr. Matsui okay, so you can read your letters to
your home.")
* * *
Q. Mr. Matsui, you have testified that Major
Tsuneishi carried his sword all the time. Was a
sword part of the usual uniform of a field grade
officer in the Japanese army ?
Mr. De Wolfe: Objected to as immaterial, incom-
petent, sir.
The Court: Objection sustained.
(A. It is the usual uniform for the staff officer.
String on shoulder, like this (witness points to right
shoulder), and sword.)
Q. Did you ever see Tsuneishi take his sword
out of the case and threaten anyone with it?
Mr. DeWolfe: Objected to as too general, in-
competent, irrevelant and immaterial.
The Court: Objection sustained.
(A. No, I did not. In the headquarters?)
Q. No. Remove the sword from the case?
Mr. DeWolfe : Objected to as immaterial.
The Court: Objection sustained.
(A. No, no, no.)
Q. When did you leave the radio station?
Mr. DeWolfe : Go ahead.
A. May, 1945.
vs. United States of America 649
(Deposition of Suisei Matsui.)
Q. Was Buddy Uno still at the Bunka Camp when
you left?
Mr. DeWolfe: Same objection.
Mr. Tamba: I beg your pardon.
Mr. DeWolfe : That is all right.
The Court: Objection sustained.
(A. Yes.)
Q. And he was there all the time you were there ?
Mr. DeWolfe: Obje-cted to as immaterial.
The Court: Objection sustained.
(A. Yes.)
Q. How many months before the end of the war
did you leave for Shanghai?
Mr. DeWolfe: Objected to as immaterial, sir.
The Court: Objection sustained.
(A. May the same year.)
Q. How long were you in Shanghai before the
war ended?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. Pour months. I was in an internment camp
in Shanghai about a year.)
' Q. After the war was over?
Mr. DeWolfe: Objected to as immaterial.
• The Court: Objection sustained.
(A. After the war. Next year I came back. War
finished. I was in an internees' camp.)
Q. You worked in Shanghai from May, 1945,
until the war ended?
Mr. DeWolfe: Go ahead, answer it.
A. Four months.
650 Iva Ikuko Toguri D^ Aquino
(Deposition of Suisei Matsui.)
Q. Mr. Uno was still in Bunka camp when you
left here in May, 1945 ?
Mr. De Wolfe: Objected to as immaterial.
The Court: Objection sustained.
(A. Yes, I saw, I heard.)
Q. Mr. Matsui, when you returned to Tokyo you
were supposed to take over — to take charge of the
prisoner of war program %
Mr. De Wolfe: Objected to as incompetent, ir-
revelant and immaterial.
The Court: Obje<3tion sustained.
(A. Here?)
Q. Yes.
Mr. De Wolfe: Object to that, improper.
The Court: Objection sustained.
' (A. I think so.)
Q. Who stopped
Mr. Collins: Withdraw that.
Q. Who stopped that?
Mr. DeWolf e : Objected to as incompetent.
The Court: Objection sustained.
(A. Tsuneishi is the big boss over here.)
Q. So as a result of that you and Major Tsun-
eishi became bitter enemies ?
Mr. DeWolfe: Object to that as immaterial, in-
competent.
The Court: Objection sustained.
(A. I think so. He never listened to me and in
the beginning I think he refused to take me in the
camp. So it took about two months before he gave
me the certification paper.)
vs. United States of America 651
(Deposition of Suisei Matsui.)
(Whereupon the redirect examination of the
above indicated deposition was read, Mr. Col-
lins reading the questions and Mr. Tamba the
answers.)
Redirect Examination
By Mr. Tamba :
Q. You are not mad at Tsuneishi, are you?
Mr. DeWolf e : Go ahead.
A. No. Well, a little bit I am mad.
Q. I refer to defendant's exhibit ^^9." I show
you this (defendant's exhibit ^'9" is again handed
to witness by counsel) was this written while you
worked at the camp, in 1944?
Mr. DeWolf e: Go ahead.
A. I w^as — I didn't go to the camp. Murayama
brought it to me.
Q. I show you a letter from Henshaw, stating
*^copy" (paper handed to witness by Mr. Tamba).
You were away from the camp February 29, 1944?
Mr. DeWolf e : Answer it.
A. At the beginning I went to the camp and I
used to meet them in the studio, but Uno did not
like to have me over there.
Q. He did not like you at the camp?
Mr. DeWolf e: Objected to as irrevelant, im-
material.
The Court: Objection sustained.
(A. No.)
Q. After you came back you stayed home for a
while ?
652 Iva Ikuko Toguri V Aquino
(Deposition of Suisei Matsui.)
Mr. DeWolf e : Go ahead.
A. Yes.
Q. How long'?
A. About half year. When I came back from
Java I stayed in Japan about a year.
Mr. Collins : Now the document referred to then
in question 17 on page 19 of this deposition was of-
fered in evidence by the defense counsel without
objection on the part of the prose<3ution, as defend-
ant's Exhibit 10 in Matsui deposition.
Mr. Tamba: Correct.
Mr. De Wolfe: Objected to as incompetent, ir-
revelant, immaterial ; something written in Batavia.
The Court: Objection will be sustained.
Mr. Collins : Now, I should like to read the cer-
tificate attached to the deposition of Suisei Matsui,
which has been read into evidence.
(Whereupon certificate attached to above read
deposition was read into the record by Mr.
Collins.)
Mr. Collins: And in addition thereto, each page
of the said deposition is signed at the base thereof
by the deponent, Suisei Matsui.
Japan,
City of Tokyo,
American Consular Service — ss.
I do solemnly swear that I will truly and im-
partially take down in notes and faithfully tran-
vs. United States of America 653
scribe the testimony of Suisei Matsui, a witness now
to be examined. So help me God.
/s/ MILDRED MATZ.
Subscribed and sworn to before me this 6th day
of May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 812a; Tariff No. 38; No fee pre-
scribed. ,
Japan,
City of Tokyo,
American Consular Service — ss.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designation abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D 'Aquino, do hereby
certify that in pursuance of the aforesaid stipu-
lation and court order and at the request of Theo-
654 Iva Ikuko Toguri D' Aquino
dore Tamba, counsel for the defendant Iva Ikuko
Toguri D 'Aquino I examined Suisei Matsui, at my
office in Eoom 335, Mitsui Main Bank Building,
Tokyo, Japan, on the sixth day of May A.D. 1949,
and that the said witness being to me personally
known and known to me to be the same person
named and described in the interrogatories, being
by me first sworn to testify the truth, the whole,
truth, and nothing but the truth in answer to the
several interrogatories and cross-interrogatories in
the cause in which the aforesaid stipulation, court
order, and request for deposition issued, his evidence
was taken down and transcribed under my direction
by Mildred Matz, a stenographer who was by me
first duly sworn truly and impartially to take down
in notes and faithfully transcribe the testimony of
the said witness Suisei Matsui, and after having
been read over and corrected by him, was subscribed
by him in my presence; and I further certify that
I am not counsel or kin to any of the parties to this
cause or in any manner interested in the result
thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this twentieth
day of May, A.D. 1949.
/s/ THOMAS W. AINSWOETH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 951 ; Tariff No. 38 ; No fee prescribed.
[Endorsed] : Filed May 26, 1949.
vs. United States of America 655
In the Southern Division of the United States
District Court for the Northern District of
California
No. 31712 R
UNITED STATES OF AMERICA,
Plaintiff,
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OP
LESLIE SATORU NAKASHIMA
Deposition of Leslie Satoru Nakashima, taken
before me, Thomas W. Ainsworth, Vice Consul of
the United States of America, in Mitsui Main Bank
Building, Room 335, in Tokyo, Japan, under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of the United States of America
vs. Iva Ikuko Toguri D 'Aquino, pending in the
Southern Division of the United States District
Court, for the Northern District of California, and
at issue between the United States of America vs.
Iva Ikuko Toguri D 'Aquino.
The plaintiff, appearing by Prank J. Hennessy,
United States District Attorney ; Thomas DeWolf e.
Special Assistant to the Attorney General, and Noel
Storey, Special Assistant to the Attorney General,
656 Iva Ikuko Toguri V Aquino
and the defendant, appearing by Wayne N. Collins
and Theodore Tamba.
The said interrogations and answers to the wit-
ness thereto were taken stenographically by Mildred
Matz and were then transcribed by her under my
direction, and the said transcription being there-
after read over correctly to the said witness by me
and then signed by said witness in my presence.
It Is Stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objections to the use of the
deposition, or any part of the deposition, by plain-
tiff, on the plaintiff's case in chief, shall be re-
served to the time of trial in this cause.
LESLIE SATORU NAKASHIMA
of Tokyo, Japan, employed as United Press cor-
respondent, of lawful age, being by me duly sworn,
deposes and says:
Direct Examination
By Mr. Tamba :
Q. Mr. Nakashima, do you know a man by the
name of Clark Lee ? A. Yes.
Q. When and where did you first meet Mr. Lee?
A. I met Mr. Lee in about 1940.
Q. Do you know a man by the name of Brun-
dage? A. Yes.
Q. When and where did you meet him ?
vs. United States of America 657
(Deposition of Leslie Satoru Nakashima.)
A. Right after the Japanese surrender. When
the first group of correspondents came into Tokyo.
Q. Who introduced you to Mr Brundage ?
A. Clark Lee.
Q. Do you know Mr. Brundage 's first name?
A. I don't remember now what his first name is.
Q. Were Mr. Brundage and Mr. Lee in Japan,
or in Tokyo, prior to the entry of American troops,
if you recall ?
A. Well, I don't remember the two being here
together. Mr. Lee [2*] was here before the war as
an AP correspondent, but I don't remember Mr.
Brundage.
Q. What was the occasion of your meeting with
these two gentlemen after the surrender ?
A. Why, Lee wanted to get hold of Tokyo Rose.
He said here was a big story and liked me to help
him get it.
Q. And you offered to help, to assist them in
getting so-called Tokyo Rose ? A. Yes.
Q. What did you then do ?
A. So I went over to — I had heard about Tokyo
Rose but I did not know who Tokyo Rose was so
I went over to Radio Tokyo to find out and in the
confusion right after the termination of the war
there were several .boys there and Ken Oki was
there, whom I had known.
Q. Did you speak to Ken Oki ?
A. Yes, I asked him who Tokyo Rose was.
* Page numbering appearing at bottom of page of original
Reporter's Transcript.
658 Iva Ikuko Toguri D^ Aquino
(Deposition of Leslie Satoru Nakashima.)
Q. What did he tell you?
A. He said as far as they were concerned they
had no Tokyo Rose. They never introduced any
person as Tokyo Rose on their program and by pro-
gram he was referring to what he called the Zero
Hour program and there were five or six other
girls on the program.
Q. Did he give you the name of Mrs. D 'Aquino?
A. No. I asked him to get some of the girls and
he gave me the name of Iva Toguri.
Q. What did you next do, Mr. Nakashima?
A. So I told Clark Lee that Radio Tokyo had
told me that there was no single girl by the name
of Tokyo Rose, that there were five or six girls, and
how about it.
Q. What did Lee tell you, or Brundage ?
A. Well, Lee did not give me any immediate an-
swer. He told me he would think about it and later
on, I don't know how many [3] hours elapsed,
either he called me or I called him back, I don't
remember, but he told me to go ahead and get Iva
Toguri anyway and to offer her two thousand dol-
lars for an exclusive story.
Q. Did you meet Iva Toguri after that ?
A. No, I didn't even know where Toguri was
living, Mrs. D 'Aquino was living, but I knew her
husband was working for Domei News and I in-
quired at Domei for his address, so I went over
there early the next morning to D 'Aquino's house.
Q. Did you meet Mrs. D 'Aquino there ?
vs. United States of America 659
(Deposition of Leslie Satoru Nakashima.)
A. Yes, she was home with her husband.
Q. What was said by you and what was said
by her, if anything, at that time ?
A. I told her that all the correspondents were
very anxious to get hold of Tokyo Rose; that she
was a big story, and she told me then that she was
not Tokyo Rose; that there were other girls on the
program, and I remember I told her the corre-
spondents would come after her anyway and that it
would be to her advantage to give the story to Cos-
mopolitan Magazine and make some money, I said,
and I think her husband told her at the time that
it might be a good idea to give an exclusive story
because that would prevent her from being bothered
by the other correspondents. That the other cor-
respondents might not be so interested if she gave
an exclusive story to the Cosmopolitan Magazine.
Q. What did you do then after you talked with
Mrs. D 'Aquino *?
A. So I suggested that we all go to the Imperial
Hotel where Clark Lee and Brundage were.
Q. So you went into his room at the Tokyo
Hotel
A. They invited me to this room on the second
floor of the Imperial.
Q. Do you recall Mrs. D 'Aquino telling both
Brundage and Lee that she was not the only girl
on the program ?
A. I remember. Right at the outset she said she
was not Tokyo [4] Rose ; that there were other girls
660 Iva Ikuko Toguri D' Aquino
(Deposition of Leslie Satoru Nakashima.)
on the program, and then a long interview followed.
Q. You did not remain continually in the room ?
A. I was there maybe for a half hour.
Q. Then you left? A. Yes.
Q. Incidentally, some contract was prepared up
there in the room ? A. Yes.
Q. You were a witness to that contract %
A. Yes.
Q. You do not recall at this time what was in
that contract, or do you ?
A. Well, I don't remember the full details of
the contract but she might have said that she was
the only Tokyo Rose on the program.
Q. In the contract?
A. In the contract she might have. She signed
a contract and the witnesses were her husband and
myself.
Q. Before giving this testimony you talked with
Mr. Noel Storey, did you not? A. Yes.
Q. Did he show you a contract? A. No.
Q. However, you recall that was the first thing
she told Brundage and Clark, that she was not the
only girl
A. Yes, she said right at the outset she was not
the only girl on the program.
Q. Did you have occasion to see Brundage a day
or two following this interview ?
Mr. DeWolfe: I object to that question and the
following answer on the grounds that it is hearsay.
The Court : Objection sustained.
vs. United States of America 661
(Deposition of Leslie Satoru Nakashima.)
(A. He told me later that the whole thing was
spoiled because she broke the contract by giving a
mass interview to all the correspondents in Yoko-
hama.)
Q. Mr. Nakashima, you have had occasion to
interview Mrs. Toguri, [5] or D 'Aquino several
times since this date that you have just testified to ?
A. Yes.
Q. Under what circumstances, will you tell us?
A. These were occasions when stories appeared
in our cables from the States and we had to get
local reaction from the person herself so I went
over to interview her on two or three occasions.
Two occasions I remember.
Q. What, if anything, in substance, did she tell
you on this occasion — these occasions ?
A. The first time I went there was when a story
came over the wire that the Justice Department in
Washington would take action against her for trea-
son and she told me at that time that she would
welcome a trial any time anywhere because she oe-
lieved that she had committed no act of treason
against the United States in that she had not pre-
pared any script, and She said she had been in Su-
gamo Prison for a whole year and the FBI had
ample ox)portunity to check her, investigate her,
and had released her, and by that action she be-
lieved she had been given a clean bill of health.
Q. Did she tell you about anyone coaching her?
A. Yes, she said that — this she said at this inter-
view, with Clark Lee at the hotel, that Major Cou-
662 Iva Ikuko Toguri D^ Aquino
(Deposition of Leslie Satoru Nakashima.)
sens had liked her voice and had coached her in
broadcasting.
Q. Did she ever make a statement to you at any
time or any place to the effect that she wanted a
speedy trial before she lost contact with all of her
witnesses, if you recall ?
A. She said she wanted a speedy trial, but as
far as about her fear of losing contact with wit-
nesses, I don't remember.
Q. Incidentally, you were in Japan during the
war, were you not, Mr. Nakashima %
A. Yes. [6]
Q. And you are a Nisei ? A. Yes.
Q. And you are now a citizen and national of-
Japan, is that correct?
A. Yes, technically I am.
Q. Under what circumstances did you change
your citizenship ?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant, and immaterial. There is a long answer
about a page long.
The Court: Objection sustained.
(A. Well, when the war broke out I was an
American without dual citizenship. Many Japanese
with dual citizenship are considered Japanese sub-
jects on Japanese soil, as far as the Japanese gov-
ernment is concerned; they did not consider the
American side of it at all, but years before I had —
while I was living in Hawaii I had expatriated
myself from Japanese citizenship ; originally I had
vs. United States of America 663
(Deposition of Leslie Satoru Nakashima.)
dual citizenship but I had expatriated myself from
Japanese citizenship; there was a drive on in Ha-
waii at that time. They wanted all American-
Japanese to be so-called one hundred per cent
American and in the eyes of the Japanese govern-
ment I was an American, and I had to register with
the police for a residential permit over here ; when
the war broke out I was thrown in a very em-
barrassing position. Personally, I thought I — that
they would come and intern me, but after searching
my house they decided not to intern me and the
police who had been in my district, making periodic
rounds there before the w^ar, advised me to get out
Japanese citizenship because I might be thrown
into prison and get into difficulties; also my wife
was sick with tuberculosis and was in a sanitarium
and I had a daughter two years old and another one
only ten months old and I was their sole means of
support, and since June, when the Japanese froze
American assets I had not been getting any salary
from New York, and I had a very tough time, and
I could not get to see my bureau chief, the UP
l)ureau chief, because he was interned and I had
to begin looking for a job and the first thing I did
was try to reduce expenses and I went to the sani-
tarium and transferred my wife from a first class
to a third class [7] room and in December and
January I tried to get jobs but nobody would give
iHc a job because I was an American and I finally
got a jol) with Domei News Agency in February,
664 Iva Ikuko Toguri V Aquino
(Deposition of Leslie Satoru Nakashima.)
after I had made application for so-called restora-
tion of Japanese citizenship. They called it ^^ family
record." It is not called citizenship or anything like
that. It is called ''family record," and many Jap-
anese firms require that to give employment.)
Q. Did you Niseis have a pretty hard time dur-
ing the war ?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant, and immaterial, too general.
The Court: Objection sustained.
(A. Even after I had taken out Japanese citi-
zenship the gendarme and thought police were after
me all throughout the war.)
Q. You had a pretty diificult time all of you
American-born Japanese, did you not, during the
war?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(I certainly did. I had to go out and plead with
the farmers to sell me food. It would be fantastic
if I had to tell all the things we did.)
Cross-Examination
By Mr. Storey:
Q. When did you first meet the defendants
A. That morning.
Q. Give us the date as closely as you can?
A. It must have been early in September of
1945.
Q. That was after the war was over ?
vs. United States of America 665
(Deposition of Leslie Satoru Nakashima.)
A. Yes, when the first group of correspondents
came in. The first plane came to Atsugi and the
former correspondents who had been in Tokyo just
disregarded orders. They just caught the electric
train from Yokohama and came swarming into
Tokyo, and I renewed my friendship with quite a
few of the correspondents I had known.
Q. You had never heard of Iva Toguri prior to
the time you talked with Lee ?
A. I had heard at Domei where I worked that
she was one of the — no, I had heard that she was —
let's see now. I knew she worked for Domei listen-
ing post. The Domei had listening posts [8] for for-
eign broadcasts and she was one of the employees
listening to the foreign broadcasts and transcribed
them.
Q. Did you or didn't you know anything about
what she did until after the war was over ?
A. No.
Q. When you talked with Mr. Oki and asked
who was know^n as Tokyo Rose
A. I didn't say that. I asked for Tokyo Rose,
simply.
Q. And who did he tell you Tokyo Rose was?
A. Well, he said that on the Zero Hour they
never admitted having a Tokyo Rose and that they
had never introduced any person as Tokyo Rose,
but that they had five or six girls on the program.
Q. Did he give you the names of the other girls?
666 Iva Ikuko Toguri D' Aquino
(Deposition of Leslie Satoru Nakashima.)
A. No. I asked him for names and he gave me
Iva Toguri.
Q. That is the only one he gave you ?
A. Yes, the only one.
Q. And that is the only checking you did to find
Tokyo Eose?
A. That is all I did. I explained to Lee that
there were five or six girls.
Q. Did you contact anyone but Miss Toguri?
A. No, I didn't. ^
Q. Approximately how long did you stay in the
room with Mr. Lee and Mr. Brundage ?
A. About one-half hour only.
Q. Was that the only time you were ever present
when Miss Toguri was being interviewed by Lee
and Brundage? A. Yes.
Q. Did you sign this contract as a witness or did
your name just appear on this paper.
A. I think I signed it.
Q. Don't you know? Did you or didn't you sign
it ? A. Yes, I signed it. [9]
Redirect Examination
By Mr. Tamba:
Q. While you were present in the Imperial
Hotel was she offered a check by Brundage?
A. Yes, but she refused to take it. She said she
didn't want it.
/s/ LESLIE NAKASHIMA.
vs. United States of America 667
Japan,
City of Tokyo,
American Consular Service — ss.
I do solemnly swear that I will truly and impar-
tially take down in notes and faithfully transcribe
the testimony of Leslie Satoru Nakashima, a wit-
ness now to be examined. So help me, God.
/s/ MILDRED MATZ.
Subscribed and sworn to before me this 2nd day
of May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the United
States of America.
[American Consular Service Seal.]
Service No. 732a; Tariff No. 38; No fee pre-
scribed.
Japan,
City of Tokyo,
American Consular Service — ss.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
668 Iva Ikuko Toguri D^ Aquino
America vs. Iva Ikuko Toguri D 'Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
Tamba, counsel for the defendant Iva Ikuko Toguri
D 'Aquino I examined Leslie Satoru Nakashima, at
my office in Boom 335, Mitsui Main Bank Building,
Tokyo, Japan, on the second day of May, A.D.
1949, and that the said witness being to me person-
ally known and known to me to be the same person
named and described in the interrogatories, being
by me first sworn to testify the truth, the whole
truth, and nothing but the truth in answer to the
several interrogatories and cross-interrogatories in
the cause in which the aforesaid stipulation, court
order, and request for deposition issued, his evi-
dence was taken down and transcribed under my
direction by Mildred Matz, a stenographer who was
by me first duly sworn truly and impartially to
take down in notes and faithfully transcribe the tes-
timony of the said witness Leslie Satoru Naka-
shima; and I further examined the said witness
Leslie Satoru Nakashima at my office in the Mitsui
Main Bank Building, Tokyo, Japan, on the twelfth
day of May, A.D. 1949, at the request of the afore-
said Theodore Tamba, counsel for the defendant,
and upon proper notice given in my presence by
the said Theodore Tamba, counsel for the defend-
ant, to Noel Storey, Special Assistant to the Attor-
ney General, appearing for the plaintiff, on the
second day of May, A.D. 1949; and the said Noel
Storey having due notice that the counsel for the
defendant desired to put to the witness Leslie Sa-
€S. United States of America 669
toru Nakashima the question appearing in lines 2
and 3 on page 10 of the attached transcript of the
deposition of Leslie Satoru Nakashima, thereafter
not appearing at the time of the further examina-
tion of the said witness Leslie Satoru Nakashima
on the twelfth day of May, A.D. 1949 ; and the said
witness, being by me first sworn to testify the truth,
the whole truth, and nothing but the truth in an-
swer to the further interrogatory of which notice
had been duly given, his evidence was taken down
and transcribed under my direction by Martha
Vaughan Winn, a stenographer, who was by me
first duly sworn truly and impartially to take down
in notes and faithfully transcribe the further testi-
mony of the said witness Leslie Satoru Nakashima ;
and the transcript of the evidence of the said wit-
ness, including the evidence given at the time of
the further examination on the twelfth day of May,
A.D. 1949, having been read over and corrected by
him, was subscribed by him in my presence; and I
further certify that I am not counsel or kin to any
of the parties to this cause or in any manner inter-
ested in the result thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this 16th day of
May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Conj^ul of the United
States of America.
[American Consular Service Seal.]
Service No. 899 ; Tariff No. 38 ; No fee prescribed.
[Endorsed] : Filed May 21, 1949.
670 Iva Ikuko Toguri D' Aquino
In the Southern Division of the United States
District Court for the Northern Division of
California
No. 31712 R
UNITED STATES OP AMERICA,
Plaintiff,
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OF TOSHIKATSU KODAIRA
Deposition of Toshikatsu Kodaira, taken before
me, Thomas W. Ainsworth, Vice Consul of the
United States of America, in Mitsui Main Bank
Building, Room 335, in Tokyo, Japan, under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of the United States of America,
vs. Iva Ikuko Toguri D 'Aquino, pending in the
Southern Division of the United States District
Court, for the Northern District of California, and
at issue between the United States of America vs.
Iva Ikuko Toguri D 'Aquino.
The plaintiff, appearing by Frank J. Hennessy,
Uilited States District Attorney; Thomas DeWolfe,
Special Assistant to the Attorney General, and Noel
Storey, Special Assistant to the Attorney General,
and the defendant, appearing by Wayne N. Collins
and Theodore Tamba.
vs. United States of America 671
The said interrogations and answers to the wit-
ness thereto was taken stenographically by Mildred
Matz and were then transcribed by her under my
direction, and the said transcription being there-
after read over correctly to the said witness by me
and then signed by said witness in my presence.
It is Stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objections to the use of the
deposition, or any part of the deposition, by plain-
tiff, on the plaintiff's case in chief, shall be reserved
to the time of trial in this case.
TOSHIKATSU KODAIRA
of Tokyo, Japan, of lawful age, being by me duly
sworn, deposes and says :
Direct Examination
By Mr. Tamba :
Q. Mr. Kodaira, what is your present employ-
ment or occupation?
A. I am a reporter for the Associated Press
Tokyo branch office.
Q. Where were you born?
A. I was born at 19 Rokken-cho, Wakuyamachi,
Tota-Gun, Miyagi Prefecture, Japan.
Q. And you are a citizen and a national of
Japan, is that correct ? A. Right.
Q. Have you ever lived in the United States?
A. Yes.
672 Iva Ikuko Toguri D' Aquino
Q. Do you know for how many years ^
A. For about ten years.
(Deposition of Toshikatsu Kodaira.)
Q. How old were you when you first went to
the United States 'F
A. Oh, about five years old.
Q. When did you return to Japan?
A. February, 1918.
Q. And have resided in Japan continually since
that date? A. Ever since.
Q. What was your occupation during the war?
A. I was an employee of the foreign office.
Q. That is the Japanese Foreign Office?
A. Japanese Foreign Office.
Q. What were your duties, if any, during that
time?
A. Monitoring foreign short wave broadcasts.
Q. Do you know a man by the name of H. Yagi?
A. Yes.
Q. How long have you known Mr. Yagi?
A. Since 1938.
Q. Do you know a man by the name of Harry
Brundage? A. Well, I only met him twice.
Q. Will you tell us under what circumstances
you met Harry Brundage.
Mr. De Wolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Submitted?
Mr. Collins: Yes.
The Court: Objection sustained.
(A. Shall I start from the point when Yagi
phoned me up?)
vs. United States of America 673
(Deposition of Toshikatsu Kodaira.)
Q. Yes.
Mr. De Wolfe: I object to the answer which
contains a lot of hearsay.
The Court: Objection sustained.
(A. One day, I forget the exact date, Mr. H.
Yagi phoned me up at my office. He hollered into
the phone: ''Tosh, don't you want a trip to the
United States'''? Of course, I was so astonished I
could not readily answer.)
Q. After that phone call did you meet Mr. Yagi
by some arrangement?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Sustained.
(A. He told me to meet him at the St. Paul's
Club.)
Q. And did you meet him at the St. Paul's Club?
Mr. DeWolfe: Objected to.
The Court : Sustained.
(A. I did.)
Q. Then what was said between you and Mr.
Yagi?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Sustained.
(A. Then he said he knew a fellow named Harry
Brundage.)
Q. Did he tell you how long he had known Mr.
Brundage ?
Mr. DeWolfe: Objected to as hearsay, incompe-
tent, irrelevant and immaterial.
674 Iva Ikuko Toguri B^ Aquino
(Deposition of Toshikatsii Kodaira.)
The Court: Objection sustained.
(A. He told me he knew Mr. Brundage before
the war.)
Q. What else did he tell you about Mr.
Brundage ?
Mr. De Wolfe: Same objection.
The Court: Same ruling.
(A. He said he was very friendly with the
Brundage family.)
Q. Did he tell you that Mr. Brundage was in
Japan, when you were talking to him?
Mr. DeWolf e : Objected to — no foundation laid —
hearsay — immaterial and irrelevant.
The Court: Objection sustained.
(A. Yes.)
Q. Did he tell you where Mr. Brundage was?
Mr. De Wolfe: Same objection.
The Court: Same ruling.
(A. Yes.)
Q. Where did he say Mr. Brundage was?
Mr. De Wolfe: Objected to as hearsay and in-
competent, irrelevant and immaterial.
The Court: Sustained.
(A. At the Dai Jti Hotel.)
Q. Did he tell you the purpose of Mr. Brun-
dage's presence in Japan?
Mr. DeWolfe: Objected to as hearsay and in-
competent.
The Court: Sustained.
(A. Yes.)
vs. United States of America 675
(Deposition of Toshikatsu Kodaira.)
Q. What was that jmrpose?
Mr. DeWolf e : Objected to as calling for the con-
clusion of the witness and hearsay.
The Court : Sustained.
(A. He said it was to find witnesses.)
Q. For what case ?
Mr. DeWolfe: Objected to as incompetent and
hearsay.
The Court: Sustained.
(A. Tokyo Rose case.) [2*]
Q. And did you and Yagi thereafter meet
Brundage ^
Mr. DeWolfe: Objected to as hearsay.
The Court: Indicate for the record the purpose
of this testimony.
Mr. Collins : The purpose of this testimony is to
show that Harry Brundage who had gone to Japan
with his transportation paid by the Attorney Gen-
eral or the Department of Justice for the purpose
of interviewing the defendant.
The Court: Just a minute. Where do you get
thaf? Where is there anything in the record about
that?
Mr. Collins: I say that is the purpose.
The Court: How -can you make that statement?
Mr. Collins: That is a correct statement, Your
Honor.
The Court : Does the record disclose that ?
Mr. Collins: Page 620 of the reporter's tran-
* Page numbering appearing at top of page of original
Reporter's Transcript.
676 Iva Ikuko Toguri D' Aquino
(Deposition of Toshikatsu Kodaira.)
script of Friday, July 5, 1949, contains a question
addressed to Mr. John B. Hogan, and I will read
from page 619 :
' ' Q. When did you arrive in Tokyo ?
^'A. I am not certain, but about the 21st or 22nd,
I would say. I think we took about four or five days
to get there.
'^Q. About the 22nd day of March ^
^^A. About the 22nd day of March, 1948. J
''Q. Now, Mr. Hogan, Mr. Brundidge was quar-
tered with you at the Dai Ichi Hotel, too, was he
not? A. Yes."
Mr. Collins: These questions were propounded
by me.
The Court : What was the purpose, just to estab-
lish that fact?
Mr. Collins : No, I had to do that to fix the date.
The Court: All right.
Mr. Collins: Of his being sent there.
The Court: All right.
Mr. Collins: ^^Q. Yes. You were sent there to
investigate the defendant, were you, in Japan?
^^A. No, not as broadly as that. I went there to
conduct a general investigation. I went out there
for a specific [3] purpose.
^'Q. And the specific purpose was to interrogate
the defendant.
''A. Not to interrogate the defendant, no, to
merely secure the signature to the already existing I
vs. United States of America 677
(Deposition of Toshikatsu Kodaira.)
document. I did not interrogate her as to her ac-
tivities.
^^Q. In other words, your instructions from the
Attorney General were to secure the signature of the
defendant to U. S. Exhibit No. 15 which has just
been introduced in evidence, is that correct"?
Mr. Collins: May I get U. S. Exhibit No. 15?
I will produce that in just a moment to show Your
Honor what that exhibit is, and then the answer
was:
'^A. That was one of my instructions.
^*Q. So far as the defendant was concerned, they
were your only instructions, weren't they?
^^A. As far as any contact with the defendant
was concerned yes, sir."
Now, let me go on to — and the question, coming
now from page 610, relating to the interview by
Mr. Brundidge and Mr. John B. Hogan of the
defendant on March 26, 1948, reading from page
610 of the reporter's transcript; this was put on
direct examination by Mr. DeWolf e :
^^Q. Did you have a conversation with her at
that time and place? A. Yes, sir.
'^Q. Who were present at the conversation?
''A. Mrs. Aim, Mr. Brundidge, the defendant
and myself."
Then the transcript shows the conversation.
Now, directing Your Honor's attention to page
630 of the very same reporter's transcript, of July
678 Iva Ikuko Toguri V Aquino
(Deposition of Toshikatsu Kodaira.)
15, 1949, a question addressed by me to Mr. John
B. Hogan:
*^Q. Did Mr. Brundidge accompany you to Japan
as an agent for the Attorney General?
^^A. No, sir. [4]
^'Q. Did the Attorney General bear the expense
of your transportation to Tokyo?
^*A. The plane fare was paid for by the Depart-
ment of Justice, yes, sir.
*^Q. So you went to Tokyo at that time at the
expense of the government?
^^A. Only in so far as the plane was concerned,
nothing else.
'^Q. Had you instructed him to accompany you
to Tokyo? A. No, sir.
'^Q. Had the Attorney General?
"A. I think it was the reverse. He offered to go
and the Attorney General accepted his offer.''
The Court: Read the last question and I will
rule.
The Reporter: The previous question was re-
ported by Mr. Sherry, Your Honor. I do not have it.
Mr. Tamba : I think the last question was : ^^ And
did you and Yagi thereafter meet Brundidge"?
Mr. Collins: Yes.
Q. And did you and Yagi thereafter meet
Brundidge ?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant and immaterial, no foundation having been
laid.
vs. United States of America 679
(Deposition of Toshikatsu Kodaira.)
The Court: Objection will be sustained.
(A. Yes, the very next day.)
Q. Where and under what circumstances'?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. Ten o'clock the next morning I met Yagi
in front of the Dai Iti Hotel and Yagi called Mr.
Brundage down from his room. He introduced me.
Mr. Brundidge and I shook hands. He was very
polite. He called us up into his room.)
(Whereupon the reading of the deposition
was resumed, the questions being read by Mr.
Collins and the answ^ers by Mr. Tamba.) [5]
Q. Did Mr. Brundidge give either you or Yagi
some whisky while you were in the room?
Mr. DeWolfe : Object to that as incompetent, ir-
relevant and irmnaterial.
The Court: Objection sustained. Let it go out
and let the jury disregard it for any purpose in this
case.
(A. Yes, we took a couple of drinks.)
Q. Then what was said by Brundidge, if any-
thing.
Mr. DeWolfe: Objected to as hearsay, imma-
terial, incompetent.
The Court: Objection sustained.
(A. Well, he suggested that ^^you and Yagi just
saw and heard Tokyo Rose broadcasting.'')
Q. Did he suggest the time and place and the
680 Iva Ikuko Toguri I) 'Aquino
(Deposition of Toshikatsu Kodaira.)
circumstances under which you heard her broadcast ?
Mr. De Wolfe: Object to that as hearsay, incom-
petent and irrelevant.
The Court: Objection sustained.
(A. Yes, a little after the March bombing.)
Q. Did he suggest to you anything that she might
have broadcast on that occasion?
Mr. DeWolfe: Object to that as immaterial,
hearsay, incompetent.
The Court: Objection sustained. J
(A. Yes.)
Q. What was that suggestion?
Mr. DeWolfe: Object to that as irrelevant, in-
competent, hearsay.
The Court: Same ruling.
(A. That we heard Tokyo Rose broadcasting:
^'Soldiers, your wives are out with the war work-
ers.")
Q. What did you say to Brundidge after he sug-
gested that to you?
Mr. DeWolfe: Object to that as hearsay, incom-
petent and irrelevant.
The Court: Objection sustained.
(A. I told him it was very serious to stand as
a witness so I could [6] not make up my mind im-
mediately. I told him I had to think it over.)
Q. What did Mr. Brundidge say to you then ?
Mr. DeWolfe: Same objection, sir.
The Court : Same ruling.
(A. '^ All right.")
vs. United States of America 681
(Deposition of Toshikatsu Kodaira.)
Q. Did he suggest that you go home and think
it over, if you recall ?
Mr. De Wolfe: Same objection.
The Court : Objection sustained.
(A. That point I don't remember.)
Q. Did you make arrangements to meet Brun-
didge thereafter ?
Mr. De Wolfe: Object to that as incompetent
and hearsay, sir.
The Court: Objection sustained.
(A. Yes.)
Q. When did you arrange this meeting with
Brundidge f
Mr. DeWolfe: Object to that as immaterial, in-
competent, hearsay.
The Court: Objection sustained.
(A. The next day, about the same time, at the
Dai Iti Hotel.)
Q. During that first conversation who were the
persons present in that hotel room ^
Mr. DeWolfe: Object to that as irrelevant, in-
competent, immaterial, sir.
The Court: Objection sustained.
(A. Yagi, Mr. Brundidge and me.)
Q. Did you ever meet Mr. Hogan, who is con-
nected with the Department of Justice.
Mr. DeWolfe: Just a moment, no objection.
The Court: You may answer.
A. No.
Q. Did you have reason to believe that Mr.
682 Iva Ikuko Toguri D' Aquino
(Deposition of Toshikatsu Kodaira.)
Hogan was present in Japan at the time Brundidge
was there? [7]
Mr. De Wolfe: Object to that as calling for a
conclusion.
The Court: Objection sustained.
(A. Oh, Yagi told me about him.)
Q. But you never met Hogan?
Mr. DeWolfe: Go ahead.
A. No.
Q. Did you return the next day,* after the first
conversation with Brundidge? Did you return to
his hotel?
Mr. DeWolfe: Object to that as incompetent,
irrelevant, and immaterial.
The Court: Objection sustained.
(A. Yes, the next day, around ten.)
Q. Where did you go?
Mr. DeWolfe: Object to that as irrelevant, in-
competent, and immaterial.
The Court: Objection sustained.
(A. His room.)
Q. It was the same room.
Mr. DeWolfe: Same objection, your Honor.
The Court: Same ruling.
(A. Yes.)
Q. What was said by Brundidge, you, or by
Yagi?
Mr. DeWolfe : Object to that as irrelevant, hear-
say, incompetent.
The Court: Objection sustained.
vs. United States of America 683
(Deposition of Toshikatsu Kodaira.)
(A. I told him I made up my mind and that I
am not going.)
Q. Did you mention anything to him about who
Tokyo Rose might be ?
Mr. DeWolf e : Object to that as hearsay, depriv-
ing the United States of the right of confrontation,
incompetent.
The Court: Objection sustained.
(A. Yes, I told him that Tokyo Rose was a group
of girls and Iva was only one of them.)
Q. What did he do then'?
Mr. De Wolfe: Object to that as incompetent,
irrelevant and immaterial.
The Court : Objection sustained. [8]
(A. Then he took a book from the shelf, it was
a black cloth-covered book, I didn't see the name
of the book or the author but I thought it was
Clark Lee's book, and in that book he had a line
underlined with pencil which said, I forgot the
exact words, but it showed how Tokyo Rose came
out and said, ^'I am Tokyo Rose.")
Q. Incidentally, when you left Brundidge's
room, after the first meeting, what, if anything, did
he give you?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant.
The Court: Objection sustained.
(A. Oh, he gave me a half-finished bottle of
whiskey. When I was going out he gave me a
suit.)
684 Iva Ikuko Toguri D' Aquino
(Deposition of Toshikatsu Kodaira.)
Q. Suit of clothing, you mean?
Mr. De Wolfe: Object to that as incompetent,
immaterial.
The Court: Objection sustained.
(A. Suit of clothing.)
Q. Did he say, in substance, as follows, as you
left the room, after the first meeting: ^^You two
get together and think it over''?
Mr. De Wolfe: Objected to as hearsay, incompe-
tent, immaterial.
The Court: Objection sustained.
(A. ^'You two get together and think it over.")
Q. That is, to you and Yagi?
Mr. DeWolfe: Objected to as hearsay, and no
proper foundation having been laid, incompetent.
The Court: Objection sustained.
(A. At the first session or during the first ses-
sion?)
Q. Yes.
Mr. DeWolfe: Same objection, sir.
The Court: Same ruling.
(A. Yes, he told us that.)
Q. And when he said ^^You two get together,"
he meant you and Yagi?
Mr. DeWolfe: Object to that, no foundation
having been laid, hearsay, incompetent.
The Court: Objection sustained. [9]
(A. Yes.)
Q. And when you told him the next day you
had made up your mind, did you tell him why?
vs. United States of America 685
(Deposition of Toshikatsu Kodaira.)
Mr. De Wolfe: Objected to as hearsay, incompe-
tent, no proper foundation having been laid.
The Court: Objection sustained.
(A. Yes.)
Q. What did you tell him?
Mr. DeWolfe: Objected to as hearsay, incom-
petent.
The Court: Objection sustained.
(A. I told him I was a Christian Pastor's son
and that it was against my fundamental principles
to tell any lies.)
Q. What did Brundidge do when you said that?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant, immaterial, hearsay.
The Court: Objection sustained.
(A. He just nodded.)
Q. Did he shrug his shoulders, do you recall?
Mr. DeWolfe: Object to that as hearsay, call-
ing for a conclusion, incompetent, irrelevant and
immaterial.
The Court: Objection sustained.
(A. Well, that I don't know.)
Q. Did he say: ^^All right, it is up to you?"
Mr. DeWolfe: Objected to as hearsay, incom-
petent, irrelevant and immaterial, no foundation
having been laid.
The Court: Keeping in mind the rulings of the
court, it is clearly a case of hearsay testimony here,
counsel.
Mr. Collins: Is your Honor making a ruling?
686 Iva Ikuko Toguri B^ Aquino
(Deposition of Toshikatsu Kodaira.)
The Court: The objection is sustained.
(A. Yes.)
Q. Do you recall him saying that.
Mr. De Wolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Objection sustained.
(A. Yes, I do.) [10]
Q. Then what did you and Yagi do?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant and immaterial, no foundation having
been laid.
The Court: Objection sustained.
(A. We came out of his room, out of the Dai
Iti Hotel, and Yagi and I entered a Japanese tea
parlor, a coffee house, I think you call it, had a
cup of coffee together.)
Q. What was said by you and what was said
by Yagi at that place?
Mr. De Wolfe: Objected to as hearsay, irrele-
vant, immaterial and incompetent.
The Court: Objection sustained.
(A. I told Yagi that ^^Damn you. We didn't
contact each other during the war, and it was al-
most impossible for outsiders to get into the Radio
Tokyo building, much less the studio where the
broadcasting was going on.'' Then I told him,
Yagi, how serious it was to be a witness especially
in a case like this. Yagi told me, after hearing
what I said and what I explained to him, he said
he decided not to go, too.)
Q. Did he at that time make a statement, in
vs. United States of America 687
(Deposition of Toshikatsu Kodaira.)
substance, to the effect that he got a trip, or words
to that effect?
Mr. DeWolfe: Objected to as hearsay, incom-.
petent, irrelevant and immaterial.
The Court: Is there any doubt in your mind,
counsel, that this is not hearsay testimony?
Mr. Collins: It isn't that, your Honor; I think
that matter was just argued before your Honor
by Mr. Olshausen, and - it is my frank opinion
that it is clearly admissible testimony, going
The Court: It is hearsay. Now that you have
a record on it, and it seems to me it is sufficient for
all purposes. I don't want to deny you any legal
position that you take here in this case, but it
is obvious to me, and I think should be to you, that
this is clearly hearsay testimony. I say that ad-
visedly to you.
Mr. Collins: Well, I have no alternative, if
your Honor please, save and except to read the
deposition, to have your Honor make what rulings
your Honor sees fit to make. [11]
The Court : Very well, that is a matter entirely
for you. But I have clearly indicated the legal
position of the court. That gives you an opportu-
nity, if I am in error in my ruling, to — it saves
your position in the matter. I can't do any more
than that.
Mr. Collins : Well, it may be that there are ques-
tions, and I assume there are, that your Honor
would make a favorable ruling to in here.
688 Iva Ikuko Toguri D' Aquino
(Deposition of Toshikatsu Kodaira.)
The Court: Well, if there are, go through
them.
Mr. Collins: Well, I mean, I can't very well do
that, because it is a question here of also having
a record.
The Court: All right, proceed.
Q. Did you later learn that Yagi went to the
United States?
Mr. DeWolf e : Objected to as hearsay, incompe-
tent and irrelevant.
The Court: Objection sustained.
(A. Yes.)
Q. To testify as a witness before grand jury
proceedings ?
Mr. DeWolf e: Same objection.
The Court: Same ruling.
(A. Yes.)
Q. State under what circumstances you learned
that.
Mr. De Wolfe: Objected to as hearsay, incom-
petent.
The Court: Objection sustained.
(A. One Sunday, my very good friend Toshio
Yamanouchi, the foreign editor of the Tokyo Shin-
bun, he usually comes to my house for a Sunday
bath, so he must have seen Yagi Saturday night
at the Japanese Press Club — Yagi told Yama-
nouchi that he was leaving for the United States.)
Q. Do you know a man by the name of Jim
vs. United States of America 689
(Deposition of Toshikatsu Kodaira.)
Woods or James Woods connected with the United
States Provost Marshal*?
Mr. DeWolfe: Go ahead.
A. Yes, I came to know him before Yagi came
back from the United States.
Q. Under what circumstances did you meet Mr.
James Woods?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant, immaterial. [12]
The Court: Objection sustained.
(A. I was working in my office when he came
in and introduced himself as being a very good
friend of Yagi's.)
Q. What was said between you and Mr. Woods,
in substance *?
Mr. DeWolfe: Objected to as hearsay, incom-
petent.
The Court: Objection sustained.
(A. In substance, he wanted me to go to the
United States.)
Q. Did he tell you with reference to what?
Mr. DeWolfe: Objected to as hearsay, incompe-
tent.
The Court: Objection sustained.
(A. Yes, in the Tokyo Rose case.)
Q. You tell us, in substance, if you recall, what
was said by Mr. Woods and what was said by you
on that occasion. He mentioned Mr. Yagi's name
to you?
Mr. DeWolfe: Objected to as immaterial, in-
competent, irrelevant, hearsay.
690 Iva Ikuko Toguri I)' Aquino
(Deposition of Toshikatsu Kodaira.)
The Court: Objection sustained.
(A. Yes.)
Q. What did he say about Yagi?
Mr. De Wolfe: Objected to as hearsay, irrele-
vant and incompetent.
The Court: Objection sustained.
(A. He said he was very fond of Yagi. Very
friendly with him on the way to the United States.)
Q. Did he ask you if you knew Yagi?
Mr. De Wolfe: Objected to as hearsay, incom-
petent.
The Court: Objection sustained.
(A. No, he introduced himself as a very good
friend of Yagi.)
Q. Did Mr. Woods ask you if you knew Yagi?
Mr. De Wolfe: Objected to as hearsay.
The Court: Objection sustained.
(A. Yes.)
Q. Did you answer him yes or no? [13]
Mr. De Wolfe: Same objection.
The Court: Same ruling.
(A. I said ^'Yes.'O
Q. What did he ask you with reference to Yagi,
with reference to this case, and I am speaking of
the occasion in your office in Radio Tokyo, when
you were talking to Mr. Woods?
Mr. DeWolfe: Objected to as incompetent,
hearsay.
The Court: Objection sustained.
vs. TJyiited States of America 691
(Deposition of Toshikatsu Kodaira.)
(A. He wanted me to say, yes, or no, if I was
going with him to the United States.)
Q. Who, Mr. Woods ^
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. Yes.)
Q. Did he ask you with reference to what?
Mr. DeWolfe: Objected to as hearsay, your
Honor.
The Court: Objection sustained.
(A. On this Tokyo Rose case.)
Q. What did you say to Mr. Woods at that
time?
Mr. DeWolfe: Objected to as hearsay.
The Court: Objection sustained,
(A. Well, I didn't say, yes, or no, immediately.)
Q. What were your reasons for not answering,
yes, or not?
Mr. DeWolfe: Objected to as calling for a con-
clusion, hearsay, incompetent, irrelevant and im-
material.
The Court: Objection sustained.
(A. I thought the reason I should not commit
myself was this. If I said '*Yes," I would be
working against my principles. I would be tell-
ing lies. If I said: *'No," I might hurt Yagi.)
Q. So you didn't give Mr. Woods an immediate
answer ?
Mr. DeWolfe: Same objection, sir.
The Court: Same ruling.
i
692 Iva Ikuko Toguri D' Aquino
(Deposition of Toshikatsu Kodaira.)
(A. No.)
Q. Did you seek any independent advice regard-
ing the answer you should give Mr. Woods ? [14]
Mr. De Wolfe: Go ahead.
A. Yes.
Q. From whom did you seek that advice?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant, immaterial, hearsay.
The Court: Objection sustained.
(A. I sought advice from Mrs. Tom Lambert.)
Q. Who is she?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant, hearsay, immaterial. ^
The Court: Objection sustained. 1
(A. She is the wife of Tom Lambert, an Asso-
ciated Press correspondent in Tokyo.)
Q. What did Mrs. Lambert tell you?
Mr. DeWolfe: Same objection, if the Court
please.
The Court: Objection sustained.
(A. She told me to tell the truth.)
Q. And after you talked to Mrs. Lambert, what
did you do?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant, and immaterial.
The Court: Objection sustained.
(A. Jimmie Woods called me in his office and j
I gave him the statement.)
Q. What w^as the substance of the statement
you gave Mr. Woods?
vs. United States of America 693
(Deposition of Toshikatsu Kodaira.)
Mr. De Wolfe: Object to that and not the best
evidence, hearsay.
The Court: Objection sustained.
(A. That it was not with Yagi that I saw this
broadcast.)
Q. Later you were confronted with Mr. Yagi?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant, and immaterial.
The Court: Objection sustained.
(A. Yes.)
Q. And what, if anything, did Yagi do at that
time and place?
Mr. DeWolfe: Objected to as incompetent, hear-
say.
The Court: Same ruling.
(A. Woods said: ^'Tosh says Yagi was not with
him during the broadcast.") [15]
Q. What did Yagi say.
Mr. DeWolfe: Objected to as incompetent.
The Court: Same ruling.
(A. Then Woods says: ^^Yagi says that Tosh
was with him during the broadcast. Which is
right? I told Jim ''Yagi will answer." Yagi ad-
mitted that he was not with me.)
Q. Going back to the meeting with Brandidge
at the Dai Iti Hotel, did he ask you if you knew
a man by the name of Ken Oki?
Mr. DeWolfe: Same objection, sir.
The Court: Same ruling.
(A. Yes, he did.)
694 Iva Ikuko Toguri D' Aquino
(Deposition of Toshikatsu Kodaira.)
Mr. De Wolfe: Objected to as hearsay, sir.
The Court : Same ruling.
(A. I said I did not know him.)
Q. Mr. Kodaira, you have met Mr. Tilman of
the Federal Bureau of Investigation?
Mr. DeWolfe: Go ahead.
A. I have, once.
Q. And you have not told him what you have
told us here this morning?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Objection sustained.
(A. Correct.)
Q. When you met him, he asked you what you
knew about the Toguri case?
Mr. DeWolfe: Objected to as hearsay.
The Court: Objection sustained.
(A. That's correct.)
Q. And he told you that he wanted to see you
again about Mr. Yagi at some later date?
Mr. DeWolfe: Same objection, sir.
The Court: Same ruling.
(A. Yes.)
Q. Do you know a man by the name of Tomatsu
Murayama ?
Mr. DeWolfe: Go ahead.
A. Yes, I do.
Q. Do you know what connection, if any, he had
with Camp Bunka? A. I didn't get that.
vs. United States of America 695
(Deposition of Toshikatsu Kodaira.)
Q. Do you know what connection, if any, he had
with Camp Bunka?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Objection sustained.
(A. Oh, Camp Bunka, yes, he was there to
analyze monitor broadcasts and at the same time
criticize the propaganda line adopted by JOAK.)
Q. Did he ever complain to you about the treat-
ment of prisoners of war at Camp Bunka?
Mr. DeWolfe: Same objection, hearsay, sir.
The Court: Same ruling.
(A. Oh, he did, many times.)
Q. Do you know a man by the name of Major
Tsuneishi ?
Mr. DeWolfe: Go ahead.
A. Yes.
Q. You met him on April 26 of this year, is
that correct? A. Correct.
Q. Where did you meet him?
A. Oh, he was waiting in front of Radio Tokyo
building and came up to the A.P. office with me.
Q. And he later came to your home on the 27th ?
A. That's right.
Q. Did you talk to him on the 26th in Radio
Tokyo? A. Not much.
Q. Well, did a man by the name of Ken Ishii
approach Major Tsuneishi and you?
A. He approached me, I should say, approached
Tsuneishi.
696 Iva Ikuko Toguri B' Aquino
(Deposition of Toshikatsu Kodaira.)
Q. What did he say to Tsuneishi?
A. Told him that the witnesses should not con-
tact the defense.
Q. Did the name of Major Cousens come up
in the conversation between you and Major
Tsuneishi? [17] A. Yes.
Q. State whether or not Major Tsuneishi at that
time and place, either the 26th or the 27th, said to
you that he actually ordered Major Cousens to
broadcast over the radio?
Mr. De Wolfe: Objected to as hearsay.
The Court: Objection sustained.
(A. He did.)
Q. Did he state to you that he had made a con-
trary statement on some other occasion?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. Yes, he did.)
Q. Did he say why he made that contrary state-
ment?
Mr. DeWolfe: Objected to as hearsay, incom-
petent, irrelevant, immaterial, a long answer in-
volving hearsay, sir.
The Court: Sustained.
(A. Yes, Major Cousens' name came up during
the conversation we had at my home. I told
Tsuneishi that I had great respect for Major
Cousens. Tsuneishi said he regretted he did a very
sorry thing against Major Cousens. He explained
the reasons that while Major Cousens was on trial !
vs. United States of America 697
(Deposition of Toshikatsu Kodaira.)
in Australia, an Australian investigator came and
asked Tsuneishi whether or not Tsuneishi ordered
Major Cousens to broadcast. Tsuneishi said he
denied he had given any orders. He regretted that
very much. He did it because he thought he would
implicate his senior officers.)
Q. Who were his senior officers, if you remem-
ber?
Mr. DeWolfe: Go ahead.
A. Colonel Xagai and General Arisue, and then
Field Marshal Gen. Sugiyama.
Q. In other words, the reason why he denied it
at that time, that is giving Cousens orders to broad-
cast was that he might implicate his senior officers ?
Mr. DeWolfe: Object to that as calling for a
conclusion, incompetent, irrelevant and immaterial.
The Court: Objection sustained. [18]
(A. That's right.)
Q. Do you recall a broadcast coming over Radio
Tokyo about the time of the battle of the Leyte
Gulf regarding the loss of ships'?
Mr. DeWolfe: Go ahead.
A. Yes, I do.
Q. Who broadcast that information, if you
know? A. It was Joe Hirakawa.
Q. Was that broadcast somewhat confused?
A. It was greatly confused.
Q. In what respect?
A. Hirakawa sank two more Japanese battle-
ships than was necessary.
698 Iva Ikuko Toguri D' Aquino
(Deposition of Toshikatsu Kodaira.)
Q. Did you later hear a shortwave station in
San Francisco on the subject 'f
A. Yes, then came a hit-back.
Q. What did it say?
Mr. DeWolfe: Objected to as hearsay, incom-
petent, irrelevant and immaterial.
The Court: The objection will be sustained.
(A. Said: ^' Radio Tokyo did it again.")
Q. Incidentally, was the loss of ships broadcast
as a flash news item, if you know?
Mr. DeWolfe: Go ahead.
A. I think it was.
Q. Are you willing to come to the United States
and testify as to the facts stated in your deposition
this morning?
Mr. DeWolfe: Go ahead.
A. On one condition, if the A.P. office permits.
Q. I want to ask you something else, did Brun-
didge suggest to you after you went to his hotel on
the second occasion, that you forget all about this
conversation you had with him?
Mr. DeWolfe: Objected to as hearsay, incom-
petent.
The Court: Objection sustained.
(A. I forget the exact words he used at that
time but I received the impression that he wanted
to keep all this confidential. Yes, he told me not
to write any stories but he broke the story by an
article in the Nashville, Tennessee, paper, and AP
carried it from Tennessee.) [19]
vs. United States of America 699
(Deposition of Toshikatsu Kodaira.)
Mr. Collins: Cross-examination by Mr. Storey.
Mr. DeWolf e : Cross-examination, under the new
Federal Criminal Rules, is waived, sir.
Mr. Collins: The defendant will offer the cross-
examination by Mr. Storey.
(Whereupon the cross-examination was read,
Mr. Collins reading the question and Mr. Tamba
the answers.)
Q. When you first met Mr. Brundidge, did he
tell you what his business in Japan was at that
time ?
Mr. De Wolfe: Objected to as hearsay, sir.
The Court: Objection sustained.
(A. Oh, yes, he showed me his passport issued
by the Department of Justice, some sort of cer-
tificate.)
Q. Was it something like this (Mr. Storey shows
a passport to the witness) '^
Mr. DeWolf e: Object to that as hearsay.
The Court: Objection sustained.
(A. No.)
Q. Did Mr. Brundidge tell you that he was a
representative of the Department of Justice at the
time he first met you?
Mr. DeWolf e: Objected to as hearsay.
Mr. Collins: That goes right to the very issue,
if your Honor please.
The Court: Yes, but it is hearsay; the objec-
tion will be sustained.
700 Iva Ikuko Toguri D' Aquino
(Deposition of Toshikatsu Kodaira.)
(A. Yes.)
Q. Did Mr. Brundidge tell you that he was also
a newspaper man?
Mr. De Wolfe: Objected to as hearsay, incom-
petent.
The Court: Objection sustained.
(A. Not exactly. Yagi said Brundidge was an
associate-editor of a certain Hearst Magazine.) g
Q. Did Mr. Brundidge tell you that he was a
representative of the Department of Justice when
he talked to you concerning the Iva Toguri case?
Mr. DeWolfe: Objected to as hearsay. [20]
The Court: Objection sustained.
(A. I don't remember that point.)
Q. What was the paper that Mr. Brundidge
showed you?
Mr. DeWolfe: Objected to as not the best evi-
dence, incompetent, irrelevant and immaterial.
Also hearsay.
The Court: Objection sustained.
(A. I vaguely remember he showed me some
kind of a can you call it a certificate, or, I don't '
know.)
Q. Did he show you anything like this (Mr.
Storey shows witness his Department of Justice |
identification card) ?
Mr. DeWolfe : Objected to as incompetent, irrele-
vant, and immaterial.
The Court: Objection sustained.
(A. No, I don't remember. He showed me
vs. United States of America 701
(Deposition of Toshikatsu Kodaira.)
something but I don't know what it was. He showed
me something but it is so vague now.)
Q. Do you recall seeing on the paper that Mr.
Brundidge showed you anything pertaining to the
Department of Justice?
Mr. De Wolfe: Objected to as immaterial, incom-
petent, and irrelevant.
The Court: Objection sustained.
(A. Anything pertaining to the Department of
Justice — I don't think I remember.)
Q. Mr. Kodaira, have you ever seen a military
entry permit the civilians have which gives permis-
sion for persons to enter Japan (Mr. Storey shows
witness a military entry permit) ?
Mr. DeWolfe: Go ahead.
A. No, we are not so familiar with them.
Q. How long were you and Mr. Brimdidge in
the room on the first occasion that you met him?
Mr. DeWolfe : Objected to as incompetent, irrele-
vant and immaterial.
The Court: Objection sustained.
(A. About an hour. Little over an hour.) [21]
Q. Can you recall what Mr. Brundidge said to
you when you first met him? Did he identify him-
self as an investigator in this case?
Mr. DeWolfe: Go ahead.
A. I don't recall his exact words.
Q. During the conversation with you did he men-
tion to you that he was a newspaper man?
Mr. DeWolfe: Objected to as hearsay, incom-
petent.
702 Iva Ikuko Toguri D' Aquino
(Deposition of Toshikatsu Kodaira.)
The Court: Objection sustained.
(A. I don't think he did because Yagi told me
before.)
Q. Told you what?
Mr. De Wolfe: Same objection, sir.
The Court: Same ruling.
(A. -Before we met, Yagi told me that he came
in with the first wave of the Occupation as a cor-
respondent.)
Q. Then at the time you first met and talked
with Mr. Brundidge, you didn't know whether he
was a newspaperman or representative of the De-
partment of Justice?
Mr. De Wolfe: Object to that as calling for a
conclusion, hearsay, incompetent, irrelevant, imma-
terial.
The Court: Objection sustained. - I
(A. This is it, you see, at the meeting we had,
Yagi and I, at the St. Paul's Club, Yagi told me
that the Brundidge family was very friendly, and
that Brundidge worked as a newspaper man in
Chicago at the time when Al Capone was indicted,
so he gave me the impression, this is Yagi, that
Brundidge is a very good friend of Mr. Tom Clark.)
Q. Do you recall anything that was said by)
Brundidge that would lead you to believe that he
was a representative of the Department of Justice?
Mr. De Wolfe: Object to that as calling for a
conclusion, hearsay, not the best evidence.
The Court: Objection sustained.
vs. United States of America 703
(Deposition of Toshikatsu Kodaira.)
(A. I personally thought, from Yagi's explana-
tion, that Mr. Brundidge was acting in behalf of
the Department of Justice, because Yagi told me
that Mr. Hogan was the formal representative of
the Department of Justice.) [22]
Q. Did you see or talk to Mr. Hogan at all
during the time he was here?
Mr. DeWolfe: Pardon me just a moment. No
objection.
A. Not at all, not at all.
Q. During your conversation with Mr. Brun-
didge, did he mention to you a trip to the United
States?
Mr. DeWolfe: Objected to as hearsay, incompe-
tent, irrelevant and immaterial.
The Court: Objection sustained.
(A. He more or less suggested that.)
Q. Did he — but he didn't definitely ask you or
promise you a trip to the States, that you can
recall?
Mr. DeWolfe: Objection to as hearsay.
The Court: Objection sustained.
(A. No.)
Q. During your conversation with Brundidge
did you tell him that you had witnessed a Zero
Hour broadcast?
Mr. DeWolfe: Objected to as hearsay, incom-
petent.
The Court: Objection sustained.
704 Iva Ikuko Toguri D 'Aquino
(Deposition of Toshikatsu Kodaira.)
(A. You mean if I saw the Zero Hour broad-
cast, yes.)
Q. Did Mr. Brundidge ask you at that time what
Miss Toguri had to say on this program*?
Mr. De Wolfe: Objected to as immaterial, hear-
say, incompetent.
The Court: Objection sustained.
(A. I told him I saw the broadcast. But at
the time of the broadcast, Iva was in the room but
was not broadcasting. The time was shortly before
or after the battle of the Philippine sea.)
Q. Mr. Kodaira, you have testified that Tokyo
Kose was a group of girls?
Mr. DeWolfe: Go ahead.
A. Yes.
Q. How do you know this information?
Mr. DeWolfe: Just a moment Mr. Tamba. Ob-
ject to that as hearsay.
The Court: Objection sustained. [23]
(A. Because I saw other girls besides Toguri.)
Q. How many times did you see the Zero Hour
broadcast ?
Mr. DeWolfe: Go ahead.
A. Once.
Q. Were there other girls at the studio at the
time you saw the broadcast?
Mr. DeWolfe: Go ahead.
A. Yes, I remember the color of the clothes
worn by Toguri. Miss Toguri had a yellow dress.
Another girl had a dark dress. I mean black, ex-
cuse me.
vs. United States of America 705
(Deposition of Toshikatsu Kodaira.)
Q. During the broadcast, did these girls refer
to themselves as Tokyo Rose?
A. I don't think they did.
Q. Well, then, how do you know they were
called Tokyo Rose?
Mr. De Wolfe: Objected to as calling for a con-
chision, hearsay, incompetent, irrelevant and im-
material.
The Court: Objection sustained.
(A. It became a very famous program, and
being on the inside, many information can come to
the sub-committee.)
Q. Then you received this information by way
of an official report to the foreign office?
Mr. De Wolfe: Objected to as hearsay, not the
best evidence, incompetent.
The Court: Objection sustained.
(A. Not that, because this program was en-
tirely imder the control of the army. The Foreign
Office, the Information Board, even the JOAK,
bad no control over it.)
Q. Then all you know about the group of girls
being referred to as Tokyo Rose is what someone
else told you?
Mr. DeWolfe: Objected to as hearsay, incompe-
tent, irrelevant, and immaterial.
The Court: Same ruling.
(A. Yes, you see, I was in charge of this sub-
committee of the Board of Information which had
ail office in the Radio Tokyo, while Itabashi, the
706 Iva Ikuko Toguri D' Aquino
(Deposition of Toshikatsu Kodaira.)
original chairman, was sick, and this sub-commit-
tee [24] was composed of representatives of the
Army, or shall I give you the names, the Army,
Mr. Norizane Ikeda, the Navy, I forget this name,
the Foreign Office, Board of Information, and
through this man Ikeda we used to obtain many
information.)
Q. Was it your duty to monitor at times the
Zero Hour?
Mr. DeWolfe: Go ahead, Mr. Tamba.
A. That was not my duty.
Q. Did you ever monitor the Zero Hour pro-
gram?
Mr. DeWolfe: Go ahead.
A. Sometimes somebody checked it but I never
did myself.
Q. From the Japanese standpoint, what was the
purpose of the Zero Hour program?
Mr. Collins: The defendant will object to that
on the ground that is calling for the opinion and
conclusion of the witness, it is hearsay, improper
cross-examination, and it is incompetent, irrele-
vant and immaterial.
Mr. DeWolfe: Well, no further objection is
necessary. We both agree on that one, then.
(A. Well, I think it was more or less the army's
purpose to demoralize the American soldiers
down south.)
Mr. Collins : And then the next question too.
Mr. DeWolfe: I will agree it all go out if you
vs. United States of America 707
(Deposition of Toshikatsu Kodaira.)
want to. Next one, anyone you want to go out;
it is all right with me.
(Q. In other words the Zero Hour program was
an instrument of psychological warfare?)
(A. Exactly.)
Mr. Collins: Then the next:
Q. And you of your own knowledge know that
Miss Toguri participated in that program?
Mr. DeWolfe: Just a minute. This is line 22?
Mr. Collins: Line 22.
Mr. Tamba: Line 24 is the answer, Mr.
DeWolfe.
Mr. DeWolfe: Line 24, all right, go ahead.
A. She was in the room, but I didn't hear her.
Q. In your official capacity as a member of the
Board, did you [25] know that Miss Toguri was
participating in the Zero Hour program?
Mr. DeWolfe: Go ahead.
A. Well, as I told you before, we had no offi-
cial control over this broadcast and my informa-
tion was indirect and I never — I only saw her once
in that studio, but at that time she was not broad-
casting.
Q. Had Yagi already gone to the United States
before Mr. Woods contacted you?
Mr. DeWolfe: Objected to as irrelevant and in-
competent, sir.
The Court: Objection sustained.
(A. Yagi was in the United States.)
Q. At the time of your conversation with Mr.
Woods?
708 Iva Ikuko Toguri B' Aquino
(Deposition of Toshikatsu Kodaira.)
Mr. DeWolfe: Object to that as incompetent,
irrelevant, and immaterial.
The Court: Objection sustained.
(A. Right.)
Q. In Mr. Woods' conversation with you was
he attempting to find out what happened between
Yagi, Brundidge, and yourself?
Mr. DeWolfe: Object to that as calling for a
conclusion, hearsay, incompetent.
The Court: Objection sustained.
(A. He was not trying to find that out. He
just mentioned about Yagi.)
Q. What was the purpose of confronting you
with Mr. Yagi, in Mr. Woods' presence?
Mr. DeWolfe: Object to that as calling for a
conclusion, hearsay, incompetent.
^The Court: Objection sustained.
(A. I think to find out the truth.)
Q. When did this confrontation take place?
Soon after Yagi returned from the United States?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant, immaterial, hearsay.
The Court: Sustained. [26]
(A. Not soon, but a little later, about a week
and a half later.)
Q. And at that time did you tell Mr. Woods es-
sentially what you told us today in this deposi-
tion?
Mr. DeWolfe: Same objection, sir.
The Court: Same ruling.
vs. United States of America 709
(Deposition of Toshikatsu Kodaira.)
(A. Yes. Just a moment, I want to make a
correction in that statement. Can I?)
Q. Yes.
Mr. DeWolfe: Same objection, Your Honor.
The Court: Same ruling.
(A. What I told Mr. Woods was mostly about
Yagi. If Yagi was with me when I saw this broad-
cast. I repeatedly told him that Yagi was abso-
lutely not with me when I saw this broadcast.)
Q. Then, when you told Mr. Woods that, that
led up to this confrontation with Yagi, that took
place later?
Mr. DeWolfe: Object to that as hearsay, in-
competent.
The Court: Objection sustained.
(A. Yes.)
Q. Mr. Kodaira, can you recall the date you
have the conversation with Major Tsuneishi con-
cerning the Major Cousens incident?
Mr. DeWolfe: Objection to that as incompetent,
and an objection was sustained on direct examina-
tion to it as hearsay.
The Court: Objection sustained.
(A. He came to see me around ten o'clock, 26th
of A})ril, and then )
Q. What year?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. This year. In April of this year, 1949.
Then we could not talk much at my ofSce so I asked
710 Iva Ikuko Toguri B' Aquino
(Deposition of Toshikatsu Kodaira.)
Mm to come over to my place seven p.m. the next
day, that is April 27, 1949.)
Q. Did Major Tsuneishi also tell you that he
made the statement concerning Major Cousens to
the Australian authorities so as not to incriminate
himself %
Mr. De Wolfe: Objected to as improper, and as
incompetent, irrelevant and immaterial, hearsay,
the same objection to the same matter sustained
on direct examination. [27]
The Court: Objection sustained.
(A. He did not mention anything about him-
self. He regretted very much the denials he made
to this Australian investigator.)
Q. And these denials were also for the purpose
of not incriminating himself as a war criminal?
Mr. De Wolfe: Same objection, sir, same matter.
The Court: Sustained.
(A. No, he said he at that time didn't know
which way the wind was blowing. He thought it
was concerning war crimes.)
Q. Mr. Kodaira, do you know Miss Toguri per-
sonally %
Mr. DeWolfe: Oo ahead.
A. No.
Q. Do you know Mr. Philip D 'Aquino?
A. No.
Q. You have never talked to Mr. D 'Aquino?
A. No.
Mr. Collins: Redirect examination by Mr.
Tamba.
vs. United States of America 711
(Deposition of Toshikatsu Kodaira.)
(Whereupon the redirect examination was
read, Mr. Collins reading the questions and
Mr. Tamba the answers.)
Q. 'Mr. Kodaira, have you had a conversation
with Mr. Yagi in the past week or ten days in which
he told you that when he was pressed to give your
name in San Francisco he first went to see Brun-
didge, before he mentioned your name.
Mr. De Wolfe: Objected to as hearsay.
The Court: Objection sustained.
(A. He told me that when they pressed with
whom he saw the broadcast he went to Mr. Hogan
first, then Mr. Hogan referred him to Mr. Brun-
didge.)
Q. Then Brundidge told him to give your name ?
Mr. DeAVolfe: Same objection, if the court
please.
The Court: Same ruling.
(A. That is what he told me.)
Q. In your discussion with Mr. James Woods
there was no occasion to bring out Brundidge 's
name, is that correct?
Mr. De Wolfe: Object to that as incompetent,
hearsay, calling for a conclusion. [28]
The Court: Objection sustained.
(A. He asked me once if I met Mr. Brundidge.
I said, yes, but that was all.)
Q. In the past few days has Mr. Yagi told you
tliat he made a full and complete statement regard-
712 Iva Ikuko Toguri D' Aquino
(Deposition of Toshikatsu Kodaira.)
ing this affair to Mr. Tillman of the F.B.I. ?
Mr. De Wolfe: Objected to as hearsay.
The Court: Objection sustained.
(A. That is what he told me. He told me that
he mentioned Mr. Brundidge's name six or seven
times.)
Q. Counsel has asked you about Zero Hour
broadcast demoralizing the American troops, do
you know of your own knowledge that it actually
demoralized American troops?
Mr. DeWolfe: Well, that is redirect examina-
tion, covering a matter taken up on cross-examina-
tion which he and myself agreed should go out on
cross-examination. He didn't want it in, the an-
swer to it, and now this is on redirect. It is ob-
jected to as incompetent.
The Court: The objection is sustained.
(A. I think it didn't work.)
Mr. Collins: Then the next portion reads as
follows :
^^ Tokyo, Japan, 28 May, 1949, by Mr. Tamba:
Mr. Ainsw^orth, this deposition of Toshikatsu Ko-
daira is opened by stipulation for the purpose of
offering certain items in evidence, please let the
record show this. Redirect examination by Mr.
Tamba."
(Whereupon the redirect examination by Mr.
Tamba under date of 28 May, 1949, referred
to above, was read, Mr. Collins reading the
questions and Mr. Tamba the answers.)
vs. United States of America 713
(Deposition of Toshikatsu Kodaira.)
Q. Mr. Kodaira, I hand you three articles of
clothing and ask you what they are. What are
they, a suit of clothes'?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Objection sustained.
(A. Yes.) [29]
Q. And where did you first see that suit . of
clothes ?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Objection sustained.
(A. I saw it in Mr. Brundidge's room at the Dai
Iti Hotel.)
Q. On what occasion.
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. When I met him with Yagi the first time.)
Q. And is that the suit he gave you?
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. Yes.)
Q. Has that suit been changed any, or altered,
since that time?
Mr. DeWolfe: Objection to as incompetent, ir-
relevant and immaterial.
The Court: Objection sustained.
(A. Yes, the coat and trousers.)
Q. Wliat was done with them?
714 Iva Ikuko Toguri D^ Aquino
(Deposition of Toshikatsu Kodaira.)
Mr. De Wolfe: Same objection, if the Court
please.
The Court: Same ruling.
(A. Shortened to fit my size.)
Q. Who did that altering?
Mr. De Wolfe: Objected to as immaterial and
incompetent.
The Court: Same ruling.
(A. My wife.)
Q. I invite your attention to the item called
^'vest" and ask you whose name is that inside the
vest? (Witness shown vest.)
Mr. De Wolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Objection will be sustained.
(A. Harry Brundidge.)
Q. And bears No. 51985 and date of April 12,
1939?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant and immaterial. [30]
The Court: Objection sustained.
(A. Yes.)
Q. I show the trousers and particularly the left
rear pocket and ask you what appears there, if
anything? (Witness shown trousers.)
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. Harry Brundidge.)
Q. And number 51985? And date April 12,
1939?
vs. United States of A^neriea 715
(Deposition of Toshikatsu Kodaira.)
Mr. De Wolfe: Same objection.
The Court: Same ruling.
(A. Correct.)
Q. And you never saw that until I showed it
to you, is that true?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Same ruling.
(A. That's correct.)
Mr. Collins: And then by Mr. Tamba: ''Let the
record show that no name appears "
Mr. DeWolf e : Just a moment now, Mr. Collins.
Mr. Tamba wanted to make the record show that
the labels in this clothing, as testified to — that there
were none. I don't think that is proper to go in
the record here at this time. He makes a state-
ment here as to certain labels in the clothing, Mr.
Tamba does, '/Let the record show so and so,'' and
I object to that statement.
The Court: It may go out.
Mr. Collins: It simply said, "Let the record
show that no name appears on the coat * * *"
Mr. DeWolf e: There is more than that.
Mr. Collins: Well, it doesn't — I mean, it is
part and parcel of the deposition, if your Honor
please. It is a statement of counsel.
The Court: It may go out and let the jury dis-
regard it.
Mr. DeWolf e: Now the cross-examination
Mr. Collins: Just a moment, Mr. Dewolfe. The
716 Iva Ikuko Toguri I) 'Aquino
(Deposition of Toshikatsu Kodaira.)
matter that is now stricken by the court and that
the court instructed the jury to disregard is that
matter which appears commencing by [31] Mr.
Tamba, on line 4, page 19 of the deposition, and
extending down to and including the material, or
the words, ^^ Kodaira deposition," line 9 of page
19 of the said deposition.
The Court: Let the record so show.
(By Mr. Tamba: Let the record show that no
name appears on the coat but that it shows the
label Oxford Clothes, purchased from D. & J. Wil-
liamson, Inc., St. Louis, Mo., and I offer these
three items as defendant's exhibit "V in Kodaira
deposition.)
Mr. DeWolfe: All right. The next is cross-
examination, sir; it is not offered by the United
States.
Mr. Collins : The defendant will offer the cross-
examination of the witness by Mr. Storey.
(Whereupon the recross-examination was
read, the questions being read by Mr. Collins
and the answers by Mr. Tamba.)
Q. What did Mr. Brundidge say to you w^hen
he gave you this suif?
Mr. DeWolfe: Objected to as hearsay.
The Court: Objection sustained.
(A. Oh, I hesitated, and he said: ''Take it,''
and at the same time he said he gave another suit
to Takasumi Mitsui. I think that was all.)
Q. Did you take the suit to Mr. Mitsui?
vs. United States of America 717
(Deposition of Toshikatsu Kodaira.)
Mr. De Wolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Objection sustained.
(A. Who, did I?)
Q. Yes.
Mr. DeWolfe: Same objection.
The Court: Same ruling.
(A. No.)
Q. Did Mr. Brundidge say anything else to you
at the time he gave you the suit?
Mr. DeWolfe: Objected to as hearsay, sir.
The Court: Objection sustained. [32]
(A. I don't quite remember.)
Q. When did Mr. Brundidge give you this suit,
the first time you saw him ?
Mr. DeWolfe: Objected to as incompetent. Your
Honor.
The Court: Objection sustained.
(A. Right.)
Q. Did Mr. Brundidge give you anything else at
that time?
Mr. DeWolfe: Same objection, may it please
the court.
The Court: Same ruling.
Mr. Collins : And the next page is an addenda to
said deposition, it is dated Tokyo, Japan, 2 June
1949, by Mr. Tamba: ^'Mr. Ainsworth, I am asking
that this deposition be reopened for the second time
for the purpose of asking a few brief questions.''
718 Iva Ikuko Toguri D' Aquino
(Deposition of Toshikatsu Kodaira.)
(Whereupon redirect examination, dated 2
June 1949, was read, questions being read by
Mr. Collins and answers by Mr. Tamba.)
Q. Mr. Kodaira, on the first occasion when you
and Yagi met Mr. Brundidge at the Dai Iti Hotel
and after you had a discussion with him, did Brun-
didge leave the room, if you recall "?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Objection sustained.
(A. As far as I can recall he left the room. He
left us two alone.)
Q. When you say us two, you mean you and
Yagi?
Mr. De Wolfe: Same objection, sir.
The Court: Same ruling.
(A. Yes, me and Yagi.)
Q. And you and Yagi had a discussion?
Mr. De Wolfe: Objected to as incompetent, ir-
relevant and immaterial. Also hearsay.
The Court: Objection sustained.
(A. Yes, in Japanese.)
Q. Can you recall the substance of that discus-
sion?
Mr. DeWolfe: Same objection. Judge.
The Court: Same ruling. [33]
(A. I cannot recall the conversation in Japanese
with Yagi, but I told him that to stand as a wit-
ness is a very serious matter.)
vs. United States of America 719
(Deposition of Toshikatsu Kodaira.)
Q. Then did Brundidge return to the room
later?
Mr. DeWolfe: Objected to as incompetent, ir-
relevant and immaterial.
The Court: Same ruling.
(A. Yes, he did.)
Q. Now, did Brundidge say anything to you on
that occasion or on the second occasion, if you re-
call, indicating that he was anxious to have two
witnesses 1
Mr. DeWolfe : Objected to as hearsay.
The Court: Objection sustained.
(A. Well, he did not suggest clearly, but I re-
ceived that impression.)
Q. What impression did you receive ?
Mr. DeWolfe: Objected to as calling for a con-
clusion, hearsay.
The Court : The objection is sustained.
(A. Of trying to get Yagi and I.)
Q. Now, referring to the second meeting with
Brundidge, which was on the following day, and
after you had told him you would not testify, did
you have a discussion with him regarding Niseis ?
Mr. DeWolfe : Objected to as hearsay.
The Court: Objection sustained.
(A. Yes.)
Q. What was said by you with reference to
Niseis and what was said by him if you recall ?
Mr. DeWolfe: Objected to as hearsay, your
Honor.
The Court: Sustained.
720 Iva Ikuko Toguri D^ Aquino
(Deposition of Toshikatsu Kodaira.)
(A. Well, I told him about the plight of the
Niseis in Japan, especially when they were caught
in a war, and then I inferred that Niseis were not
treated good over here, in Japan, and they were
not treated decently in the United States either.)
Q. What did he say when you made that state-
ment? [34]
Mr. De Wolfe: Objected to as hearsay, sir.
The Court: Objection sustained.
(A. He told me, sharply, that the Niseis were
getting good treatment since the war, especially in
the Eastern part of the United States, and then he
mentioned Niseis in Chicago.)
Q. Then did he get into a discussion about Iva
again 1
Mr. De Wolfe: Objected to as incompetent and
hearsay.
The Court: Objection sustained.
(A. Yes, he did.)
Q. What did he say, if you can remember *?
Mr. DeWolfe: Objected to as hearsay.
The Court: Objection sustained.
(A. He said: "In America they don't hang
women, and after the trial and after sentence she
can live in America forever.'')
Q. Was that toward the end of your discussion
with him?
Mr. DeWolfe: Objected to as incompetent and
irrelevant.
The Court: Objection sustained.
vs. United States of America 721
(Deposition of Toshikatsu Kodaira.)
(A. Yes.)
Q. Then what did you do and what did he do?
Mr. De Wolfe: Objected to as immaterial and
incompetent.
The Court: Same ruling.
(A. Then I thanked him and shook hands with
him and left the room with Yagi.)
Mr. Collins: Then recross-examination by Mr.
Storey.
Mr. DeWolfe: Which is not offered by the
United States.
Mr. Collins: The defendant will offer recross-
examination of the witness by Mr. Storey.
(Whereupon recross-examination was read,
Mr. Collins reading the questions and Mr.
Tamba the answers.)
Q. Did you ever meet and talk to Mrs.
D 'Aquino?
Mr. DeWolfe: Go ahead.
A. Mrs. D 'Aquino, no.
Q. Did you ever see Mrs. D 'Aquino while she
was at the radio station broadcasting?
Mr. DeWolfe: Go ahead. [35]
A. Mrs. D 'Aquino, again?
Q. Yes.
A. I saw her once. I think I mentioned earlier
that she was not broadcasting then.
Q. So far as you personally know that is the
only thing you know concerning Mrs. D 'Aquino
and her activities? A. That's right.
Q. What specifically, did Mr. Brundidge say to
722 Iva Ikuko Toguri D' Aquino
(Deposition of Toshikatsu Kodaira.)
you which led you to believe that he was looking for
two witnesses'?
Mr. DeWolf e : Objected to as hearsay.
The Court: Objection sustained.
(A. At the first session excuse me, the first meet-
ing with Mr. Brundidge he repeatedly said, if I
remember correctly, the way to say as two wit-
nesses, Yagi and I saw her.)
Q. Is that all he said concerning two witnesses?
Mr. DeWolf e: Same objection, sir.
The Court: Same ruling.
(A. Yes.)
Q. And from that you gained the impression
that he was looking for two witnesses %
Mr. De Wolfe: Same objection calling for a con-
clusion, likewise.
The Court: Objection sustained.
(A. That's right.)
Q. Do you recall that I asked you in one of the
other depositions if you recall any further conver-
sation between you and Brundidge, in which you
answered, ^^No".
Mr. DeWolf e: Objected to as calling for hear-
say.
The Court: Objection sustained.
Mr. Collins: Then, by Mr. Tamba: ''I will stip-
ulate that that was asked of the witness and that he
answered '*No".
Mr. DeWolf e : Move that that statement by Mr.
Tamba go out.
vs. United States of America 723
(Deposition of Toshikateu Kodaira.)
The Court: Objection sustained, let it go out.
Mr. Collins : Question by Mr. Tamba :
Q. Can you recall anything else that Mr. Brun-
didge said to you that you have not already given
us in this deposition *?
Mr. DeWolfe: Objected to as hearsay, sir.
The Court: Objection sustained.
(A. No, I don't think I can recall anything else
at the moment.) [36]
Japan,
City of Tokyo,
American Consular Service — ss:
I do solemnly swear that I will truly and impar-
tially take down in notes and faithfully transcribe
the testimony of Toshikatsu Kodaira, a witness
now to be examined. So help me God.
/s/ MILDRED MATZ.
Subscribed and sworn to before me this 23rd day
of May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
. Service No. 964a; Tariff No. 38; No fee pre-
scribed.
724 Iva Ikuko Toguri D'Aqmno
Japan,
City of Tokyo,
American Consular Service — ss:
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D 'Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
Tamba, counsel for the defendant Iva Ikuko Toguri
D 'Aquino I examined Toshikatsu Kodaira, at my
office in Room 335, Mitsui Main Bank Building,
Tokyo, Japan, on the twenty-third day of May,
A.D. 1949, on the twenty-eighth day of May, A.D.
1949, and on the second day of June, A.D. 1949,
and that the said witness being to me personally
known and known to me to be the same person
named and described in the interrogatories, being
by me first sworn to testify the truth, the whole
truth, and nothing but the truth in answer to the
several interrogatories and cross-interrogatories in
vs. United States of America 725
the cause in which the aforesaid stipulation, court
order, and request for deposition issued, his evi-
dence was taken down and transcribed under my
direction by Mildred Matz, a stenographer who was
by me first duly sworn truly and impartially to
take down in notes and faithfully transcribe the
testimony of the said witness Toshikatsu Kodaira,
and after having been read over and corrected by
him, was subscribed by him in my presence, and I
further certify that I am not counsel or kin to any
of the parties to this cause or in any manner inter-
ested in the result thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this second day
of June, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 1096; Tariff No. 38; No fee pre-
scribed.
[Endorsed] : Filed May 13, 1949.
726 Iva Ikuko Toguri D' Aquino
In the Southern Division of the United States Dis-
trict Court for the Northern Division of Cali-
fornia.
No. 31712 R
UNITED STATES OP AMERICA,
Plaintiff,
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OF J. A. ABRANCHES PINTO
Deposition of J. A. Abranches Pinto, taken be-
fore me, Thomas W. Ainsworth, Vice Consul of the
United States of America, in Mitsui Main Bank
Building, Room 335, in Tokyo, Japan, imder the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March
22, 1949, in the Matter of the United States of
America vs. Iva Ikuko Toguri D 'Aquino, pending
in the Southern Division of the United States Dis-
trict Court, for the Northern District of Califor-
nia, and at issue between the United States of
America vs. Iva Ikuko Toguri D 'Aquino.
The plaintiff, appearing by Frank J. Hennessy,
United States District Attorney; Thomas DeWolfe,
Special Assistant to the Attorney General, and
Noel Storey, Special Assistant to the Attorney Gen-
vs. United States of America 727
eral, and the defendant, appearing by Wayne N.
Collins and Theodore Tamba.
The said interrogations and answers to the wit-
ness thereto were taken stenographically by Mildred
Matz and were then transcribed by her under my
direction, and the said transcription being there-
after read over correctly to the said witness by
me and then signed by said witness in my pres-
ence.
It is stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objections to the use of the
deposition, or any part of the deposition, by plain-
tiff, on the plaintiff's case in chief, shall be re-
sei'ved to the time of trial in this cause.
J. A. ABRANCHES PINTO
of Tokyo, Japan, Portuguese Consul in Tokyo,
Japan, of lawful age, being by me duly sworn,
deposes and says:
Direct Examination
By Mr. Tamba:
Q. Mr. Pinto, you are the consul for the Re-
public of Portugal in Tokyo, Japan? A. Yes.
Q. And you know Philip D 'Aquino?
A. Yes.
Q. Is he a citizen and national of the Republic
of Portugal? A. Yes, I consider him so.
Q. I am referring to the son, Philip D 'Aquino?
728 Iva Ikuko Toguri D' Aquino
(Deposition of J. A. Abranches Pinto.)
A. Yes, the son.
Q. I hand you a document dated April 4, 1944,
and ask you what that is (document handed to
witness) %
A. Yes, this is a certification of nationality of
Filipe Jairus D 'Aquino.
Q. Of whom? A. Portuguese nationality.
Q. Who is the person mentioned?
A. Filipe Jairus D 'Aquino, the husband of To-
guri D 'Aquino, and this is the usual document for
Portuguese citizens in Japan.
Mr. Tamba: I offer this document as defend-
ant's exhibit ^^1" in Pinto deposition.
Q. Mr. Pinto, did you attend the w^edding of
Philip D 'Aquino and Iva Toguri D 'Aquino at So-
phia University? A. Yes.
Q. And you were Mr. D 'Aquino's best man, as
I recall?
A. Well, I signed the registration papers.
Q. At the church?
A. At the church I signed it. As a witness, or
best man, if you call it that, but of course in a
private capacity.
Q. Not official capacity?
A. Not official capacity.
Q. I hand you a document dated June 18, 1945,
and ask you what that is, Mr. Pinto (document
shown to witness).
A. After they registered the marriage in the
Portuguese Consulate I posted this little bulletin
to certify that they have married and registered
vs. United States of America 729
(Deposition of J. A. Abranches Pinto.)
the marriage in the Portuguese Consulate.
Mr. Tamba : I offer this document in evidence as
defendant's exhibit *^2" in Pinto deposition.
Q. I am now referring to exhibit ^^1'' which
was offered, and ask you is that your signature at
the bottom of that document? A. Yes.
Q. Is that the seal of your government?
A. Yes.
Q. I now refer to exhibit "2^' which I offered,
and ask you if that is your signature appearing
thereon? A. Yes. [3*]
Q. And that is the seal of your government
which appears on it? A. Yes.
Q. I hand you a document dated November 4,
1948, Mr. Pinto, and ask you what that document
is (document shown to witness).
A. This is a transcription from the books in
the Portuguese Consulate of the marriage of
D 'Aquino and Toguri D 'Aquino in the Catholic
Church. It is in the Portuguese Consulate books
and this is a full transcription.
Q. That is your signature on the second page
at the bottom of the document? A. Yes.
Q. And that is the seal of your government on
this document? A. Yes.
Mr. Tamba: I offer this document, together
with the English translation, which the witness has
read, in evidence as defendant's exhibit ''3" in
Pinto deposition.
* Page numbering appearing at bottom of page of original
Reporter's Transcript.
730 Iva Ikuko Toguri D' Aquino
(Deposition of J. A. Abranches Pinto.)
Q. Mr. Pinto, I hand you a document dated
November 4, 1948, and ask you what that docu-
ment is'? (Witness shown document.)
A. This is the document which certifies that
Mr. Filipe D 'Aquino is a Portuguese citizen.
Q. And he was born when %
A. I don't know why he asked for such a docu-
ment.
Q. Is that your signature on this paper?
A. Yes.
Q. And that is the seal of your government on
this paper? A. Yes.
Mr. Tamba: I offer this document in evidence
as defendant's exhibit '^4" in Pinto deposition.
Q. I hand you another document, Mr. Pinto,
dated November 4, 1948, [4] and ask you what that
is (witness shown document).
A. I suppose Mr. D 'Aquino asked me for a
legal certificate of his registration in the Portu-
guese Consulate when he was born. All the docu-
ments in the Portuguese Consulate in Yokohama
were lost in 1923 in the big earthquake. Then, of
course I could not pass such a document. Could
not give him. Then I certified that such a thing
happened and it is impossible to furnish a certifi-
cate of registration of birth of Filipe D 'Aquino,
married, born in Yokohama on 26 March, 1921,
son of Jose Pilomeno D 'Aquino and Maria
D 'Aquino. I cannot pass the document because
it was burned. I cannot pass the document. Orig-
vs. United States of America 731
(Deposition of J. A. Abranches Pinto.)
inal document I cannot furnish. Copy of the origi-
nal document I cannot furnish because the books
were lost.
Q. When you use the word '^pass" you mean
you cannot deliver the document because it was
destroyed in the fire?
Mr. Tamba: I offer this document together
with English translation thereof as defendant's ex-
hibit "5^^ in Pinto deposition.
Q. By the way, Mr. Pinto, is that your signa-
ture at the bottom of this document, exhibit ^^5'"?
A. Yes.
Q. And the seal thereon is the seal of your gov-
ernment ? A. Yes.
Q. Mr. Pinto, this exhibit which I refer to as
exhibit '^5" with the translation, is in lieu of a
birth certificate because the birth certificate was
destroyed ? A. Yes.
Q. Now, Mr. Pinto, I show you document dated
10 September, 1946, and ask you if the signature
appearing on the right-hand of that is your signa-
ture? (Document shown to witness.)
A. Yes.
Q. And the seal of your country? [5]
A. Yes.
Q. Whose signature is that on the left-hand
side? A. Mrs. Toguri D 'Aquino.
Q. She signed that Ikuko Toguri D 'Aquino.
A. Yes.
Mr. Tamba: I offer this document as defend-
732 Iva Ikuko Toguri D^ Aquino
(Deposition of J. A. Abranches Pinto.)
ant's exhibit ^^6" in Pinto deposition, together
with English translation thereof.
Q. And that (referring to exhibit ^^6") is a cer-
tificate of registration of Ikuko Toguri D 'Aquino
with the Portuguese Consul in Tokyo, Japan, on
10 September, 1946? A. Yes.
Q. I hand you another document, Mr. Pinto,
dated 20 June, 1945, is that your signature on the
right hand side (witness shown document) ?
A. Yes.
Q. And this is the seal of your country on this
document ? A. Yes.
Q. To the left of your signature there is another
one, whose signature is that?
A. Ikuko Toguri D 'Aquino.
Q. Signed in your presence? A. Yes.
Q. Registered in your office? A. Yes.
Q. This document together with the one which
I just showed you as defendant's exhibit ''6," these
contain photographs of Mrs. D 'Aquino?
A. Yes.
Mr. Tamba : I offer this document as defendant's
exhibit ^^7" in Pinto deposition. [6]
Q. I now hand you another document dated
June 30th, 1947, and ask you what that is. (Docu-
ment exhibited to witness.)
A. Certificate of registration of Filipe Jairus
D 'Aquino.
Q. Is this your signature on the document (in-
dicating) ? A. Yes.
vs. United States of America 733
(Deposition of J. A. Abranches Pinto.)
Q. And the seal of your government appears
on it? A. Yes.
Q. And the signature of Filipe J. D 'Aquino?
A. Yes.
Mr. Tamba: I offer this document, together
with a translation thereof, in evidence as defend-
ant's exhibit No. ^^8" in Pinto deposition.
Q. Exhibit ^^1" which we offered in this depo-
sition, what is that document, Mr. Pinto? What
is this document? Tell us for the purpose of the
record ?
A. Certificate of nationality of Filipe Jairus
D 'Aquino as a Portuguese citizen.
Q. Referring to Exhibit ^^6" in this deposi-
tion, what is that, sir?
A. Certificate of Portuguese nationality of
Ikuko Toguri D 'Aquino by marriage with Filipe
Jairus D 'Aquino, as a Portuguese citizen, bears
date 10 September, 1946.
Q. Exhibit "1,'' what is that, sir?
A. Certificate of nationality of Toguri D 'Aquino
as a Portuguese citizen.
Q. That is by virtue of marriage with a Portu-
guese citizen, Filipe D 'Aquino? A. Yes.
Q. And that has your signature?
A. Marriage with Portuguese citizen, Filipe
Jairus D 'Aquino.
Q. Dated June 20, 1945? A. Yes.
Q. Mr. Pinto, how long have you been a resi-
dent of Japan? [7]
734 Iva Ikuko Toguri I) 'Aquino
(Deposition of J. A. Abranches Pinto.)
A. I have been in Japan for thirty-two years.
Q. And you have been Portuguese Consul for
how many years?
A. I think I have been Consul since I come to
Japan in 1917 up to I am not sure but I think up
to middle of 1921 and after that I left the Con-
sulate for a while, I don't know how many years,
but I think about five years maybe, and after five
years the Consulate in Yokohama was vacated, see,
and the Portuguese Minister here asked me again
to become the Consul for Portuguese and I said
on condition that the Consulate be moved to Tokyo
because I was living in Tokyo. Then I became
Consul for Portuguese up to now. I think from
1926 maybe I became Consul in Tokyo, or '25, I
am not sure.
Q. And you have been Portuguese Consul in
Tokyo ever since 1925 or '26 up to the present
time ? A. Yes.
Q. As Portuguese Consul have you had occa-
sion to familiarize yourself with regard to the
laws of Portugal with reference to registration of
citizens and acquisition of Portuguese nationality?
A. Yes.
Q. You have acquired that through your ex-
perience as a Portuguese Consul? A. Yes.
Q. Your experience on that subject of the law
has been acquired by reading Portuguese law books
and from your experience as Portuguese Consul?
A. Yes.
vs. United States of America 735
(Deposition of J. A. Abranches Pinto.)
Q. Will you state, Mr. Pinto, whether or not
according to the law of Portugal the marriage of
an adult woman citizen of the United States to
an adult male Portuguese citizen in Tokyo, Japan,
on April 19, 1945, in and of itself conferred upon
that woman the nationality and citizenship of Por-
tugal? A. Yes. [8]
Q. It did?
A. Yes, according to Portuguese law, yes.
Q. Will you state whether or not according to
the law of Portugal the formal registration of such
a marriage by such husband and wife or by either
of them at the Consulate of Portugal in Tokyo,
Japan, constituted a formal acquisition of Portu-
guese nationality by said woman, or by the wife ?
A. Yes.
Q. It did? A. Yes.
Q. Mr. Pinto, Mrs. Iva Toguri D 'Aquino was
born in California of Japanese parents?
A. Yes.
Q. And in consequence was a citizen of the
United States by birth? A. Yes.
Q. In July, 1941, she left the United States?
A. Yes.
Q. She took up residence in Tokyo, Japan?
A. Yes.
Q. Thereafter she was united, she was married
on April 19, 1945, at Tokyo, Japan, according to
the rites of the Roman Catholic Church at Sophia
T^niversity Chapel, to Philip D 'Aquino, a national
736 Ivalkuko To gnri D' Aquino
(Deposition of J. A. Abranches Pinto.)
and citizen of Portugal residing in Japan, who is
one-fourth Portuguese and three-fourths Japanese
blood? A. Yes.
Q. Can you state whether or not according to
the law of Portugal by virtue of said marriage, in
and of itself, she then and there became a national
and citizen of Portugal? A. Yes.
Q. She did become a national and citizen of
Portugal? A. Yes.
Q. Have you the Portuguese law on that sub-
ject with you? A. Yes. [9]
Q. May we see the books, sir?
A. (Witness produces two books, which he con-
sults.) This is the Civil Code. This article. Arti-
cle 18 of the Code, has been modified.
Q. Where does it provide that Mrs. D 'Aquino
became a Portuguese citizen? A. Where?
Q. Where in the book?
A. Article 18, Portuguese Citizens.
Q. Don't read any of the paragraphs in that
book other than those which apply to her.
A. (Witness reads.) "^o. 6. The foreign
W'Oman who marries with a Portuguese citi-
zen * * *"
Q. Becomes a citizen and national of Portugal?
A. The new one is the same, yes. (Witness
reads from book.) ^^The foreign woman that mar-
ries with a Portuguese citizen * * ^"
Q. She becomes a citizen and national of Por-
tugal? A. Yes.
vs. United States of America 737
(Deposition of J. A. Abranches Pinto.)
Q. I want to ask you another question. That
woman acquires Portuguese citizenship by virtue
of the fact that she is married outside of the United
States?
A. Even if she married in the United States
she w^ould become a Portuguese citizen.
Q. But she could not claim the benefits of the
Portuguese law had she married in the United
States? A. Yes, she could not.
Q. But because she married in Japan to a Por-
tuguese citizen she can claim the benefit of the
Portuguese law? A. Yes.
Q. Incidentally, are you familiar with Machado
Villela? A., Yes.
Q. Who is he? [10]
A. Well, he was a lawyer, or a teacher of law,
and is a well known international lawyer.
Q. He is a Portuguese international lawyer?
A. Yes.
Q. He published a book in 1921 ? A. Yes.
A. That book is Tratado Elementar de Direito
Internacional Privado ? A. Yes.
Q. And the opinion you have expressed here
this morning is confirmed in that book?
A. What is that?
Q. The opinion which you expressed here is
confirmed by Mr. Villela?
A. Is according to the Tratado Elementar de
Direito Internacional Privado.
Q. For the purpose of the record, the Book
738 Iva Ikuko Toguri JD' Aquino
(Deposition of J. A. Abranches Pinto.)
No. 1 published in 1921, paragraph 38, page 116,
you delivered the book to the Minister and it is
in the Minister's office? A. Yes.
Cross-Examination
By Mr. Storey :
Q. Mr. Pinto, who is the chief of the Ministry
of the Portuguese Government in Tokyo, Japan?
A. Mr. Franco Nogueira.
Q. Are you familiar with Mr. Nogueira's sig-
nature ? A. Yes.
Q. I hand you a document, Mr. Pinto, which
is offered as Government's Exhibit ^^1," in con-
nection with this deposition, and ask you if you
can identify the signature appearing on this docu-
ment?
Mr. Tamba: Document is objected to upon the
ground that no proper foundation has been laid,
and constitutes hearsay. [11]
Q. Is that Mr. Nogueira's signature on the docu-
ment referred to?
A. Yes. Excuse me, well, of course it is his sig-
nature but usually he writes his signature com-
plete: ^^ Franco Nogueira." Here, in Portuguese,
we call it rubrica only. Of course it is his rubrica
but usually he signs it Franco Nogueira. At least
that is the signature I know.
Q. Is that (pointing to seal on Government's
exhibit ^^1") the official seal of the Portuguese Le-
gation on the bottom? A. Yes.
vs. United States of Amey^ica 739
(Deposition of J. A. Abranches Pinto.)
Q. Has Mr. Nogueira ever discussed the citi-
zenship of Mrs. Iva D ^Aquino with you?
A. He has with me sometimes, yes, especially
later, course.
Q. Is Mr. Nogueira an attorney by profession
in Portugal?
A. Well, of course, he has the law course in
Portugal, but I don't know if he was. I suppose
he was for a short time, I think so.
Q. Do you know of your own knowledge that
he was?
A. Actually at present I don't know. Natur-
ally he can be if he likes to be, he can be a lawyer
in Portugal.
Q. Has Mr. Nogueira been trained in the legal
profession in Portugal ? A. Yes.
Q. Has Mr. Nogueira finished all the educa-
tional requirements to become an attorney?
A. Yes.
Q. To your own knowledge do you know if No-
gueira is a member of the bar?
A. This I don't know. I am not sure.
Q. In your discussions with Mr. Nogueira con-
cerning the citizenship of Mrs. D 'Aquino, has he
informed you that there is some controversy
A. Yes, he did.
Q. Concerning the fact that Philip D 'Aquino is
a Portugal national? [12]
A. There is some doubt about the father's na-
tionality. Of course if the father is not a Portu-
740 Iva Ikuko Toguri D 'Aquino
(Deposition of J. A. Abranches Pinto.)
guese the son will not be a Portuguese, but
Q. And at the present time is there an investi-
gation going on concerning the nationality of Mr.
Philip D 'Aquino^
A. Yes, the father D 'Aquino.
Q. When Mrs. D 'Aquino was married to Philip
D 'Aquino, you have testified, she acquired Portu-
guese citizenship? A. Yes.
Q. At that time did she lose her American
citizenship ?
A. I don't know, according to the American
law.
Q. Did Mrs. D 'Aquino discuss with you at the
time she proposed to be married to Philip D 'Aquino
the possibility of losing her American citizenship?
A. No.
Q. As a result of this marriage?
A. No, we did not discuss it at that time.
Q. Mr. Pinto, was Mr. Nogueira a witness to
the marriage? A. No, he was not in Japan.
Q. Has Mr. Nogueira asked you since the war
if Mrs. D 'Aquino had a conversation with you be-
fore she was married as to whether or not she would
lose her American citizenship if she married Philip
D 'Aquino?
A. Since the war? You mean when the war
started?
Q. Since the war has been over?
A. If I had some conversation
Q. With Mr. Nogueira about the loss of the
vs. United States of America 741
(Deposition of J. A. Abranches Pinto.)
American citizenship of Mrs. D 'Aquino in the
event she married Mr. D 'Aquino?
A. Of course, when the question of Mrs.
D 'Aquino as Tokyo Rose began, sometimes the ques-
tion is, "is she a Portuguese citizen while she is
married to D 'Aquino; he is a Portuguese citizen,
of course; she is a Portuguese because she was
married with [13] D 'Aquino in June, 1945."
Q. You are positive that Mrs. D 'Aquino did
not discuss with you prior to the time she married
Philip D 'Aquino the possibility of losing her Amer-
ican citizenship in the event she were married to
Mr. D 'Aquino?
A. No. I think about nationality we discussed
nothing at that time but, of course, I think when
they were married they knew that she became a
Portuguese citizen. It is according to Portuguese
law that any Portuguese marries with a foreigner
that foreigner becomes a Portuguese. It is a fact.
Q. Did Mrs. D 'Aquino tell you she wanted to
retain her American citizenship when she married
D 'Aquino?
A. She did not tell anything about that. She
told me her nationality and I told her it is written
in the marriage document the place she was born
and her American citizenship
Q. And you gave Mrs. D 'Aquino no advice
what over as to the loss of her American citizenship
as a result of this marriage?
A. I have no idea to inform her on that.
742 Iva Ikuko Toguri D' Aquino
(Deposition of J. A. Abranches Pinto.)
Mr. Storey: I want to make sure the record
states that I reserve objection to the documents
introduced into evidence in connection with this
deposition, until the time of trial.
Redirect Examination
By Mr. Tamba:
Q. You have known Philip D 'Aquino's father
for many years'? A. Yes.
Q. And you know he is a Portuguese citizen
and national? A. Yes.
Q. The records of his registration have been
destroyed, is that correct? A. Yes.
Q. Where, in what office?
A. In Portuguese Consulate in Yokohama. [14]
Q. He is presently registered in your office as
a national and citizen of Portgual?
A. The father?
Q. Yes.
A. The father was registered already, when I
arrived in Japan.
Q. Registered and known as a Portuguese
citizen and national ?
A. Yes, when I arrived.
Q. In Yokohama? A. Yes.
Q. That office was destroyed by an earthquake?
A. Yes.
Q. And you know that of your own knowledge?
A. Yes.
vs. United States of America 743
(Deposition of J. A. Abranches Pinto.)
Q. And he is presently registered in your office ?
A. Registered in 1923 by the former Consul.
Q. He is registered now in your office ?
A. Yes, in my office.
Q. Mr. Storey has referred to a document, which
is marked Government's Exhibit ^'1,'' that does not
change your opinion in any wise, does if?
A. No.
Q. And that is, if she were (voluntarily) living
in America, or if she had married there it would be
a different situation than if she was married in
Japan ?
A. No, it does not change my opinion.
/s/ J. A. ABRANCHES PINTO.
Japan,
City of Tokyo
American Consular Service — ss.
I do solemnly swear that I will truly and impar-
tially take down in notes and faithfully transcribe
the testimony of J. A. Abranches Pinto, a witness
now to be examined. So help me God.
/s/ MILDRED MATZ.
Subscribed and sworn to before me this 13th day
of May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 876a; Tariff No. 38; No fee prescribed.
744 Iva Ikuko Toguri D' Aquino
Japan,
City of Tokyo,
American Consular Service — ss.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D 'Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theo-
dore Tamba, counsel for the defendant Iva Ikuko
Toguri D 'Aquino, I examined J. A. Abranches
Pinto, at my office in Room 335, Mitsui Main
Bank Building, Tokyo, Japan, on the thirteenth
day of May, A.D. 1949, and that the said witness
being to me personally known and known to
me to be the same person named and described
in the interrogatories, being by me first sworn to
testify the truth, the whole truth, and nothing but
the truth in answer to the several interrogatories
and cross-interrogatories in the cause in which the
vs. United States of America 745
aforesaid stipulation, court order, and request for
deposition issued, his evidence was taken down and
transcribed under my direction by Mildred Matz,
a stenographer, who was by me first duly sworn
truly and impartially to take dow^n in notes and
faithfully transcribe the testimony of the said wit-
ness J. A. Abranches Pinto, and after having read
over and corrected by him, was subscribed by him
in my presence; and I further certify that I am
not counsel or kin to any of the parties to this
cause or in any manner interested in the result
thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this 26th day of
May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 998 ; Tariff No. 38 ; No fee prescribed.
[Endorsed] : Filed June 9, 1949.
DEFENDANT'S EXHIBIT NO. 1
IN PINTO DEPOSITION
(Translation)
Consulate of Portugal
(Coat of Arms)
Tokyo
Service of the Portuguese Republic
Certificate of Consular Registry No. 90
The Consul of the Portuguese Republic in Tokyo,
746 Iva Ikuko Toguri B' Aquino
Makes it known that Felipe Jairus D 'Aquino; Mar-
ital status single (Note of translator: The word
^'single" was lined out and replace by pencil writ-
ing ^'married"), profession, newspaperman, son of
Jose Filomeno d 'Aquino and of Maria d 'Aquino,
born on the 26th day of March of 1921, a native of
Yokohama, is a Portuguese citizen and is duly reg-
istered in the Register of this Consulate under No.
5 of Book No. 1 of inscriptions.
His last residence was Yokohama and he arrived
on (date in blank) at this consular district.
He resides in Tokyo, 4 Tamuracho, 6-chome,
Shiba-ku.
He proved his identity by consular inscription.
Portuguese Consulate in Tokyo, on April 4, 1944.
Signature of the person being
registered,
/s/ F. D 'AQUINO.
/s/ J. A. ABRANCHES PINTO,
Consul.
(Rubber Stamp) : Consulate of Portugal — Tokyo.
(Photograph).
(Rubber Stamp) : Consulate of Portugal — Tokyo.
Characteristics : Height, 1,65 meters ; Hair, black ;
Face, oval; Beard, has not; Eyes, brown; Nose,
regular ; Mouth, regular ; Color, white..
This certificate is valid for the period of one year.
(Stamp) : Portuguese Republic 12$00 (escudos)
Consular Service.
(Rubber Stamp) : Consulate of Portugal — Tokyo.
vs. United States of America 747
Paid at the rate or 0.20 the amount of Y 2.40 in
accordance with Item No. 1 of the table of rates,
this amomit being entered in the book of entries
under No. 1615. Tokyo, April 4, 1944.
/s/ A. PINTO.
(Rubber Stamp) : American Consular Service,
Tokyo, Japan.
/s/ THOMAS W. AINSWORTH
American Vice Consul.
On the back :
** Revalidated for the period of two years until
April 3, 1947. Portuguese Consulate in Tokyo,
June 21, 1945."
/s/ J. A. ABRANCHES PINTO.
(Rubber Stamp) : Consulate of Portugal, Tokyo.
(Rubber Stamp) : Gratis.
Translator's affidavit attached.
U. S. Consular Service certificate attached.
[Endorsed]: Filed Sept. 2, 1949. U. S. D. C.
Defts. Ex. EE.
DEFENDANT'S EXHIBIT NO. 2
IN PINTO DEPOSITION
(Translation)
Consulate of Portugal
(Coat of Arms)
Marriage Certificate
On the 18th day of June, 1945, was transcribed
at this Consulate the marriage, celebrated in con-
748 Iva Ikuko Toguri D^ Aquino
formity with the canonic laws, of Felipe J.
D 'Aquino, a native of Yokohama, Japan, son of
Jose Filomeno D 'Aquino and of Maria D 'Aquino
with Ikuko Toguri D 'Aquino, a native of Los Ange-
les, California, daughter of Jun Toguri and of
Fumi Toguri.
Consulate of Portugal in Tokyo, on the 18th day
of June, 1945.
/s/ J. A. ABRANCHES PINTO,
Consul.
(Rubber Stamp) : Consulate of Portugal — Tokyo.
/s/ THOMAS W. AINSWO'RTH,
American Vice Consul.
(Rubber Stamp) : American Consular Service,
Tokyo, Japan.
Translator's affidavit attached.
U. S. Consular Service certificate attached.
[Endorsed]: Filed Sept. 2, 1949. U. S. D. C.
Defts. Ex. FF.
DEFENDANT'S EXHIBIT NO. 3 IN PINTO
DEPOSITION
(Translation)
Consulate of Portugal
Tokyo
I, Joao do Amaral Abranches Pinto, Consul of
Portugal in Tokyo, Japan Do hereby certify
that in the book of records and transcriptions of
marriages of this Consulate of Portugal in Tokyo,'
vs. United States of America 749
on the back of page seven, page eight and back,
there appears the record of marriage as follows:
Record No. 5 — At the request of Filipe
Jairus Testus d 'Aquino, I, Joao do Amaral Ab-
ranches Pinto, Consul of Portugal in Tokyo, tran-
scribe hereunder the following record of marriage,
performed in conformity with the canonic laws of
the Catholic Chapel annexed to Sophia University
of Tokyo, in Kojimachi-ku, Tokyo, on the nine-
teenth day of the month of April, in the year
nineteen hundred and forty-five, before the Rever-
end Father J. B. Kraus, S.J
On the nineteenth day of the month of April in the
year nineteen hundred and forty-five, in the chapel
annexed to the Catholic Sophia University of Tokyo,
in Kojimachi-ku, Tokyo, before the Reverend Father
J. B. Kraus, S.J. the following perfomied their
marriage: the bridgegroom Filipe Jairus Testus
d 'Aquino, newspaperman, residing in this capital,
single, a native of Yokohama, Japan, born on the
twenty-sixth day of March, in the year nineteen
hundred and twenty-one, legitimate son of Jose
Filomeno d 'Aquino and Maria d 'Aquino, and the
bride : Ikuko Toguri, residing in this capital, single,
North-American citizen, a native of Los Angeles,
California, United States of North America, born
on the fourth day of July, in the year nineteen
hundred and eighteen, legitimate daughter of Jun
Toguri and Fumi Toguri, her name becoming Ikuko
Toguri d'Aquino.
And for the records, I transcribe this marriage rec-
750 Iva I'kuk(fToguri B^ Aquino
ord in accordance with the terms of Article 36 of
Decree Number 29970, published in the Government
Diary Number 240 of October 13, of the year 1939,
and in the Portuguese Civil Code, on presentation
of the proofs, which are annexed to this record at
the request of the bridegroom. Consulate of Por-
tugal in Tokyo, on the eighteenth day of the Month
of June, in the year nineteen hundred and forty-
five.
/s/ J. A. ABRANCHES PINTO,
Consul.
/s/ THOMAS W. AINSWORTH,
American Vice Consul.
[(Stamped) : American Consular Service.]
There follows the receipt of consular emoluments.
Paid at the rate of exchange of 0.20 the amount of
Forty Escudos (y 8.00) in accordance with item 20
of the table of rates, this amount being entered in
the book of entries under No. 1620. Tokyo, June
18, 1945. — Signed, A. Pinto. — Fiscal stamp of the
Consular Service duly authenticated by a rubber
stamp reading : Consulate of Portugal — Tokyo
Nothing else appearing in the record that I am con-
sulting, I issued these presents, to which is affixed
a stamp of this Consulate, signed by me on the
fourth day of the month of November, in the year
nineteen hundred and forty-eight
Consulate of Portugal in Tokyo, on November 4,
1948.
/s/ J. A. ABRANCHES PINTO,
Consul.
vs. United States of America 751
(Rubber stamp) : Consulate of Portugal — Tokyo.
(Stamp) : (Portuguese Republic, 40$00, Con-
sular Service.)
(Rubber stamp) : Paid at the rate of 11.00 the
amount of Y440.00 (Escudos 40$00) in accordance
with item 25 of the table of rates, this amount being
entered in the book of entries under number 258.
Tokyo, November 4, 1918.
/s/ A. PINTO.
THOMAS W. AINSWORTH,
American Vice Consul.
(Stamped) : American Consular Service.
(Consular Seal over wax.)
U. S. Consular Service Certificate attached.
[Endorsed] : Filed Sept. 2, 1949. U.S.D.C. Defts.
Ex. GG.
DEFENDANT'S EXHIBIT NO. 4 IN PINTO
DEPOSITION
Portuguese Consulate
Tokyo
To whom it may concern,
This is to certify that, Mr. Filipe Jairus
d 'Aquino, born in Yokohama on 26th March, 1921,
married to Mrs. Ikuko Toguri d 'Aquino, is a
Portuguese national duly registered in this Con-
sulate.
Portuguese Consulate in Tokyo, 4th November,
1948.
/s/ J. A. ABRANCHES PINTO.
752 Ivalkuko Toguri D' Aquino
(Rubber Stamp) : Consulate of Portugal — Tokyo,
(Stamp): Portuguese Republic 25:00 (escudos)
Consular Service.
/s/ THOMAS AINSWORTH,
American Vice Consul.
(Stamp) : American Consular Service.
American Consular Service certificate attached.
[Endorsed]: Filed Sept. 2, 1949. U. S. D. C.
Defts. Ex. HH.
DEFENDANT'S EXHIBIT NO. 5
IN PINTO DEPOSITION
(Translation)
Consulate of Portugal
Tokyo
Affidavit
I, Joao do Amaral Abranches Pinto, Consul of
Portugal in Tokyo
Upon request and because it is the truth and to
whom it may concern, do hereby certify that, the
books and documents belonging to the files of the
Consulate of Portugal in Yokohama having been
destroyed on the occasion of the earthquake and
subsequent fire of September 1, in the year 1923, it
is not possible to furnish the record of birth cer-
tificate of Filipe Jairus d 'Aquino, married, born in
Yokohama on March 26, 1921, son of Jose Filomeno
d'Aquino and Maria d'Aquino
vs. United States of America 753
Consulate of Portugal in Tokyo, November 4, 1948.
The Consul,
/s/ J. A. ABRANCHES PINTO.
(Rubber Stamp) : Consulate of Portugal —
Tokyo.
(Stamp) : Portuguese Republic 25$00 Consular
Service.
(Rubber stamp) : Paid at the rate of 11.00 the
amount of Y275.00 (Escudos 25$00) in accordance
with item 26 of the table of rates, this amount being
entered in the book of entries under No. 257.
Tokyo, November 4, 1948.
/s/ A. PINTO.
/s/ THOMAS W. AINSWORTH,
American Vice Consul.
(Stamp) : American Consular Service.
Translator's affidavit attached.
American Consular Service Certificate attached.
[Endorsed] : Filed Sept. 2, 1949. U.S.D.C. Defts.
Ex. 11.
DEFENDANT'S EXHIBIT NO. 6 IN PINTO
DEPOSITION
(Translation)
Consulate of Portugal
(Coat of Arms)
Tokyo
Service of the Portuguese Republic
Certificate of Consular Registry No. 159
The Consul of the Portuguese Republic in Tokyo
754 Iva Ikuko Toguri D' Aquino
makes it known that Ikuko Toguri d 'Aquino (by
marriage to Filipe J. d 'Aquino) marital status,
married, profession, newspaperwoman, daughter of
Jun Toguri and Fumi Toguri, born on July 4, 1918,
a native of Los Angeles, California, is a Portuguese
citizen and is duly registered in the Register of this
Consulate under No. 5 of Book No. 1 of inscriptions.
Her last residence was in (blank) and she arrived
in (date blank) at this consular district.
She resides in Setagaya-ku, Ikejirimachi, No. 396.
She proved her identity by previous consular cer-
tificate.
Consulate of Portugal in Tokyo, on September 10,
1946.
/s/ IKUKO TOGURI D 'AQUINO,
Signature of the person being
registered.
/s/ J. A. ABRANCHES PINTO,
Consul.
(Rubber stamp) : Consulate of Portugal — Tokyo.
(Photograph.)
Characteristics : Blank.
This certificate is valid for the period of one year.
(Stamp) : Portuguese Republic 12$00 Consular
Service.
Paid at the rate of 0.20 the amount of Y2.40 in
accordance with Item No. 1 of the table of rates,
vs. United States of Ajnerica 755
this amount being entered in the book of entries
under No. 1694. Tokyo, September 10, 1946. '
/s/ A. PINTO.
/s/ THOMAS W. AINSWORTH,
American Vice Consul.
(Stamp): American Consular Service.
Translator's affidavit attached.
American Consular Service certificate attached.
[Endorsed] : Filed Sept. 2, 1949. U.S.D.C. Defts.
Ex. JJ.
DEFENDANT'S EXHIBIT NO. 8 IN PINTO
DEPOSITION
(Translation)
(Coat of Arms)
Consulate of Portugal
Tokyo
Service of the Portuguese Republic
Certificate of Consular Registry No. 190
The Consul of the Portuguese Republic in Tokyo
makes it known that Filipe Jairus d 'Aquino, mari-
tal status, married, profession, newspaperman, son
of Jose Filomeno d 'Aquino and Maria d 'Aquino
born on the 26th day of March, 1921, a native of
Yokohama, is a Portuguese citizen and is duly
registered in the Register of this Consulate under
No. 5 of Book No. 1 of inscriptions, his last resi-
dence was Yokohama, and he arrived on (date in
blank) at this consular district.
756 Iva Ikuko Toguri B' Aquino
He resides in Tokyo, Setagaya-ku, 396 Ikejiri-
machi.
He proved his identity by previous consular cer-
tificate. Consulate of Portugal in Tokyo, on June ,
30, 1947. !
/s/ FILIPE J. D ^AQUINO,
Signature of the person being
registered.
/s/ J. A. ABRANCHES PINTO,
Consul.
(Photograph.)
(Rubber Stamp) : Consulate of Portugal — Tokyo, f
Characteristics : Blank.
This certificate is valid for the period of one year. :
(Stamp) : Portuguese Republic 12$00 Consular i
Service. |
Paid at the rate of 0.80 the amount of Y9.60 in
accordance with Item 1 of the table of rates, this
amount being entered in the book of entries under
No. 1753. Tokyo, June 30, 1947.
/s/ A. PINTO.
/s/ THOMAS W. AINSWORTH,
American Vice Consul.
American Consular Service certificate attached.
[Endorsed]: Filed Sept. 2, 1949. U.S.D.C. Defts. i
Ex. LL.
vs. United States of America 757
GOVERNMENT'S EXHIBIT ^^I"
IN PINTO DEPOSITION
Consulate of Portugal
Tokyo, April 28, 1949.
No. 21
Proc. 2,2
Memorandum
Reference is made to the Diplomatic Section's
memorandum of January 27th, 1949, concerning the
nationality of Mrs. Iva Toguri de Aquino.
2. The Portuguese Diplomatic Agency wishes to
advise the Section that, regardless of the fact that
Mrs. Aquino could eventually have acquired the
Portuguese citizenship by marriage (which in this
case is a doubtful point still under investigation),
she may not claim the Portuguese nationality while
living in a country whose laws might also consider
her as its national.
3. For further information, the Agency invites
the Section's attention to the Portuguese Code of
Civil Law which in its article 18 § 3 includes the
above provision.
/s/ F. POY.
[Stamped] : Consulate of Portugal.
Tokyo, April 28th, 1949.
/s/ THOMAS W. AINSWORTH,
American Vice Consul.
(Stamj)ed) : American Consular Service.
[Endorsed]: Filed Sept. 2, 1949. U.S.D.C. U.S.
Ex. 71.
758 Iva Ikuko Toguri D' Aquino
In the Southern Division of the United States
District Court for the Northern District of
California
No. 31712 R
UNITED STATES OP AMERICA,
Plaintiff,
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OP HEINRICH DUMOULIN .
Deposition of Heinrich Dumoulin, taken before
me, Thomas W. Ainsworth, Vice Consul of the
United States of America, in Mitsui Main Bank
Building, Room 335, in Tokyo, Japan, under the
authority of a certain stipulation for taking oral j
designations abroad, and upon order of the United !
States District Court, made and entered March 22, j
1949, in the Matter of the United States of America i
vs. Iva Ikuko Toguri D 'Aquino, pending in the ;
Southern Division of the United States District j
Court, for the Northern District of California, and |
at issue between the United States of America vs.
Iva Ikuko Toguri D 'Aquino.
The plaintiff appearing by Prank J. Hennessy,
United States District Attorney; Thomas DeWolfe,
Special Assistant to the Attorney General, and Noel
Storey, Special Assistant to the Attorney General,
and the defendant, appearing by Wayne N. Col-
lins and Theodore Tamba.
vs. United States of America 759
The said interrogations and answers to the witness
thereto were taken stenographically by Mildred
Matz and wxre then transcribed by her under my
direction, and the said transcription being there-
after read over correctly to the said witness by me
and then signed by said witness in my presence.
It was orally stipulated between Mr. Tamba of
the defense, and Mr. Storey of the prosecution, that
the administering of the oath to the witness was
waived.
It is Stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objections to the use of the
deposition, or any part of the deposition, by plain-
tiff, on the plaintiff's case in chief, shall be re-
served to the time of trial in this cause.
HEINRICH DUMOULIN
of Tokyo, Japan, of lawful age, testified as follows :
Direct Examination
By Mr. Tamba:
Q. Father Dumoulin, what is your full name?
A. Heinrich Dumoulin.
Q. And, Father, do you belong to the Society
of Jesus ? A. Yes, I am a Jesuit.
Q. You are presently with the Sophia Uni-
versity in Tokyo?
A. Yes, staying at Sophia University as pro-
fessor.
760 Iva Ikuko Togiiri D' Aquino
(Deposition of Heinrich Dumoulin.)
Q. What subjects do you teach at Sophia Uni-
versity?
A. Philosophy, and now religion.
Q. How long have you been with Sophia Uni-
versity ?
A. I am staying at Sophia from the beginning
of my stay in Japan, that is to say from 1935, and
I belong to the staff of the University, but I don't
remember that date.
Q. Father, you know a person by the name of Iva
Toguri, also known as Iva D 'Aquino? [2^]
A. Yes, Toguri — Ikuko, I know her. A person
called Ikuko Toguri.
Q. Did she come to see you sometime in the year
1945, Father Dumoulin?
A. Yes, she came to see me together with Philip
D 'Aquino, asking me to — explaining to me their sit-
uation, and their desire to be married in the Catholic
Church. Mr. D 'Aquino had been a Catholic. He
was a Catholic, and so they wanted to be married
at the Catholic Church, and she wanted to become
a Catholic, to be instructed and baptized before.
I do not remember exactly what we taked about
together but I know I came to the conclusion that
the best way to do would be to have her instructed
by a Father who could give the instruction in Eng-
lish. I, myself, was replacing at the time Father
Heuvers, the parish priest of St. Theresa. He was
the parish priest of the church and, as he was ill,
I was replacing him. As I, myself, did not know
* Page numbering appearing at bottom of page of original
Reporter's Transcript.
vs. United States of America 761
(Deposition of Heinrich Dumoulin.)
sufficient English I found that it would be better
that she would be instructed by a Father who could
give the instruction in English. I think she spoke
Japanese but as she spoke English better than
Jai)anese I came to the conclusion that it would be
easier to have her instructed in English. I do not
remember to what extent she was able to speak
Japanese. I called Father Kraus, who speaks Eng-
lish perfectly, and Father Kraus gave the instruc-
tions and he was able to baptize her, if I am not
mistaken one or two days before the marriage.
(Witness consults paper purporting to be a bap-
tismal certificate.) Yies, baptized the 18th of April
and she was married on the 19th.
Q. Father, did you prepare the church for the
marriage ?
A. No, I don't remember it. It must have been
the lay brother.
Q. Were you present at the marriage ceremony?
A. I was present later on in the parlor. We
signed the documents and I saw the couple and I
felicitated them. I remember that quite well that
I saw them and felicitated them after the marriage,
and I may say this (witness consults photostatic
copy of purported marriage certificate), I may say,
is the signature of Father Kraus. It is very charac-
teristic of Father Kraus' handwriting to anybody
who knew him.
Q. May I ask you where Father Kraus is today*?
A. He died in 1946, I think in March. The day
you can, of course, find out.
762 Iva Iktiko Toguri D' Aquino
(Deposition of Heinrich Dumoulin.)
Q. What is this that you refer to as having
Father Kraus' signature?
A. That is written by Father Kraus.
Q. The certificate of marriage ?
A. Yes, and this is the signature of Father
Kraus. Quite characteristic and anyone who knew
him, I am sure, can tell his signature.
Mr. Tamba: May I offer this document in evi-
dence. It is the certificate of marriage dated April
19, 1945, and I offer it in evidence as defendant's
Exhibit ''I." It is a photostatic copy.
Mr. Storey: No objection.
Q. May I show you a photostatic copy of an-
other document (counsel hands document to wit-
ness), and ask you what that is?
A. That was written by myself, and is the testi-
mony of baptism. I have written the whole docu-
ment.
Mr. Tamba: I offer the photostatic copy of
the baptismal certificate as defendant's Exhibit ^^2,"
in evidence. It bears the date April 18, 1945.
Mr. Storey: No objection.
Q. Father, I show you another document (coun-
sel hands paper to witness), and ask you what
that is?
A. Yes. I think — it is just a copy of what I
have \\T:'itten.
Q. Is that a certificate of marriage?
A. It is the baptismal certificate. It should be
a copy. It is [4] the signature of Father Heuvers,
vs. United States of America 763
(Deposition of Heinrich Dumoulin.)
who was the parish priest of the church. I took his
place during his illness and now he is recovered.
Q. Is that your signature (Counsel points to
paper) *?
A. No, it is just a copy. I think it is an exact
copy of what I have written. As far as I can see
it is a copy of the photograph and that is what I
have written.
Q. On the other side of this page (counsel points
to the reverse side of the same document), may I
ask what is on there *?
A. Yes. That is a copy, too.
Q. I am referring to defendant's exhibit '^1,"
for the purpose of the record, is this language on
the back of this document I am showing you the
same as that?
A. There are two books in the parish. . One
book of baptismal records and one of matrimony
records and that is a photograph taken of the book
of baptismal records, Exhibit ^'2." That is, the
photograph taken from the book of matrimony,
Exhibit ^^1," which is the principal thing, and that
I w^rote myself on the inside, and on the reverse we
make reference where the status of the person has
changed, confirmation and first communion and mar-
riage, and that is a copy.
Q. Do you remember who was present at the
mairiage, that is if you recall?
A. I remember. Father Kraus, and the couple,
and there were certainly two witnesses present that
764 Iva Ikuko Toguri D ^Aquino
(Deposition of Heinrich Dumoulin.)
signed the document. Let me see (witness con-
sults paper). Yes, Mr. Pinto and Rita D 'Aquino.
Q. Their names are contained in Exhibit ^^1''
of the record?
A. Yes. Of course these two documents are of
the highest value, signed by these people and in this
case by myself and Father Kraus and the couple,
and these books are regarded of the highest value,
and we had to save these books in case of incen-
diary [5]
Q. Do you remember I came up to the university
and looked at the books with you and Father Van?
A. Yes.
Q. What is Father Van's full name?
A. Van Overmeeren. I saw the Father first
bring the books to you.
Q. How long did this course of instruction con-
tinue, if you remember?
A. I cannot exactly remember. When she came
for the first time I don't remember the exact date
of that but it must have been — I was replacing
Father Heuvers and you can make sure about the
sickness of Father Heuvers. I think he fell ill dur-
ing the month of January, about the second half of
January, and it must have been some time after
that.
Q. Do you remember the day of the marriage,
that there was a big air raid in Tokyo?
A. Yes, there was an air raid in Tokyo, and we
had to take refuge and I remember that after com-
ing from the refuge we went to the parlor and
vs. United States of America 765
(Deposition of Heinrich Diunoulin.)
were quite pleased that the ceremony and all things
had taken place, that it was possible.
Q. After the marriage do you remember seeing
Mrs. D 'Aquino again?
A. I don't exactly. Maybe, but I have a faint
remembrance, but I don't recall exactly.
Q. You have no recollection of her coming to
church ?
A. I think she came, but I could not say with
certainty.
Q. Did she ever discuss the war with you. Father
Dumoulin ? A. Never.
Q. Did she ever discuss with you — well, did she
appear to be sincere in becoming a member of your
faith?
A. I had the impression that she wanted to be
a Catholic and, as I told you the other day when you
came to see us, I don't remember exactly her con-
versation, but first I must explain that I must have
explained to Mr. D 'Aquino and to Miss Toguri,
that they could [6] be married in the Catholic
Church without her being a Catholic; that it would
be easy to have permission. That is a thing I
always explain in such cases. It was my responsi-
bility to explain that so that I must have explained
that to the couple, and I remember that Father
Kraus was quite satisfied about the way things were
going on, but I don't remember any conversation
with Father Kraus in exact terms, but matrimony
took place and everything was all right.
766 Ivalkuko Toguri D' Aquino
(Deposition of Heinrich Dumoulin.)
Cross-Examination
By Mr. Storey:
Q. Father Dumoulin, did Miss Toguri tell you
that she was an American citizen at the time that
she married Mr. D 'Aquino?
A. I cannot remember that. I cannot remember
that.
/s/ H. DUMOULIN. [7]
Japan,
City of Tokyo,
American Consular Service — ss.
I do solemnly swear that I will truly and im-
partially take down in notes and faithfully tran-
scribe the testimony of Heinrich Dumoulin, a wit-
ness now to be examined. So help me God.
/s/ MILDRED MATZ.
Subscribed and sworn to before me this twenty-
ninth day of April, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 668a; Tariff No. 38; No fee pre-
scribed.
vs. United States of America 767
Japan,
City of Tokyo,
American Consular Service — ss.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D 'Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
Tamba, counsel for the defendant Iva Ikuko Toguri
D 'Aquino, I examined Heinrich Dumoulin, at my
office in Room 335, Mitsui Main Bank Building,
Tokyo, Japan, on the twenty-eighth day of April,
A.D. 1949, and that the said witness being to me
personally known and known to me to be the same
person named and described in the interrogatories,
administering of the oath to the witness having
been waived by oral stipulation between Theodore
Tamba, counsel for the defendant, and Noel Storey,
counsel for the plaintiff, his evidence was taken
down and transcribed under my direction by Mil-
768 Iva Ikuko Toguri D' Aquino
dred Matz, a stenographer, who was by me first
duly sworn truly and impartially to take down
in notes and faithfully transcribe the testimony of
the said witness Heinrich Dumoulin, and after hav-
ing been read over and corrected by him, was sub-
scribed by him in my presence; and I further
certify that I am not counsel or kin to any of the
parties to this cause or in any manner interested
in the result thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this 16th day
of May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 897 ; Tariff No. 38; No fee prescribed.
vs. United States of America 769
In the Southern Division of the United States
District Court for the Northern District of
California
No. 31712 R
UNITED STATES OF AMERICA,
Plaintiff,
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OP KATSUO OKADA
Deposition of Katsuo Okada, taken before me,
Thomas W. Ainsworth, Vice Consul of the United
States of America, in Mitsui Main Bank Building,
Room 335, in Tokyo, Japan, under the authority
of a certain stipulation for taking oral designations
abroad, and upon order of the United States Dis-
trict Court, made and entered March 22, 1949, in
the Matter of the United States of America vs.
Iva Ikuko Toguri D 'Aquino, pending in the South-
ern Division of the United States District Court
for the Northern District of California, and at
issue between the United States of America vs. Iva
Ikuko Toguri D 'Aquino.
The plaintiff appearing by Frank J. Hennessy,
United States District Attorney ; Thomas DeWolf e.
Special Assistant to the Attorney General, and Noel
Storey, Special Assistant to the Attorney General,
and the defendant, appearing by Wayne N. Collins
and Theodore Tamba.
770 Iva Ikuko Toguri D' Aquino
It appearing that the witness Katsuo Okada could
not intelligently testify in the English language and
did well understand the Japanese language, one
Makoto Matsukata, who also well understand said
language, was employed as interpreter, and was
sworn in as follows :
''You do solemnly swear that you know the Eng-
lish and Japanese languages and that you will truly
and impartially interpret the oath to be adminis-
tered and interrogatories to be asked of Katsuo
Okada, a witness now to be examined, out of the
English language into the Japanese language, and
that you will truly and impartially interpret the
answers of the said Katsuo Okada thereto out of
the Japanese language into the English language,
so help you God."
The said interrogations and answers to the wit-
ness thereto were taken stenographically by Mildred
Matz and were then transcribed by her under my
direction, and the said transcription being there-
after read over correctly to the said witness by me
and then signed by said witness in my presence.
It is Stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objections to the use of the
deposition, or any part of the deposition, by plain-
tiff, on the plaintiff's case in chief, shall be re-
served to the time of trial in this cause.
vs. United States of America 771
KATSUO OKADA
of Tokyo, Japan, of lawful age, being by me duly
sworn, deposes and says:
Direct Examination
By Mr. Tamba:
Q. Mr. Okada, do you live in Japan?
A. Yes.
Q. Are you a citizen and national of Japan?
A. Yes.
Q. Were you a member of an organization known
as the Kempei Tai? [2*] A. Yes.
Q. How many years were you in the Kempei
Tai? A. Five years.
Q. Did you have a rank in the Kempei Tai?
A. Yes, I did.
Q. What was that rank?
A. Master Sergeant.
Q. Did the Tokyo Kempei Tai always wear uni-
forms ?
A. As for myself, most of the time I wore
ordinary civilian clothes, but on special occasions
I wore my uniform.
Q. Was that true of most members of your
organization ?
A. It depended on the section and it was di-
vided into those who wore imif orms and those that
certain days in the month wore uniforms and other
times wore ordinary civilian clothes.
Q. You were a friend of Iva D 'Aquino?
* Page numbering appearing at bottom of page of original
Reporter's Transcript.
772 Iva Ikuko Toguri D^ Aquino
(Deposition of Katsuo Okada.)
A. Yes.
Q. You were a friend of Philip D 'Aquino?
A. Yes.
Q. And you are also a friend of Mrs. Kido and
Mr. Kido, the people with whom the D'Aquinos
lived, is that correct? A. No mistake.
Q. Now, you have talked with Mr. D 'Aquino
about this case many times, have you not ?
A. Is it concerning Iva ?
Q. Yes, concerning Iva.
A. While Iva was in Sugamo Prison I talked
with him many times. After Iva was taken to the
United States I met him six or seven times.
Q. And you have met me three times?
A. Three times, including today.
Q. When did you first meet Iva D 'Aquino?
A. Approximately October, 1944. [3]
Q. Are you sure you did not meet her in 1943?
A. I am not sure whether it was 1943 or 1944,
but it was at the time To jo quit the Prime Minister-
ship.
Q. Into hoAv many organizations was the Kempei
Tai divided?
A. Three sections that worked outside.
Q. What were those sections?
Mr. DeWolfe: Object to that as incompetent,
irrelevant, immaterial.
The Court: Objection sustained.
Mr. Collins: The purpose of that, if it please
the Court, was to show the sections and the divi-
vs. United States of America 773
(Deposition of Katsuo Okada.)
sions of the sections and their respective functions,
of the sections, insofar as their activities were con-
cerned which directly related to checks upon the
defendant.
The Court: The Court has ruled.
(A. Thought Control, it was divided into two
sections; communistic activities, and activities con-
trary to communistic activities; besides that there
was a section called ^^ foreign nationals section,"
such as Niseis and foreigners.)
Q. What section did you belong to, Mr. Okada?
Mr. DeWolfe: Object to that as incompetent,
irrelevant and immaterial.
The Court: Objection sustained.
(A. I was in the Thought Control Section, in
the part that was investigating rightists organiza-
tions, one that was not investigating communism.)
Q. Do you know whether or not members of
tlie Kempei Tai organizations were watching Mrs.
D Aquino? A. Yes, I know.
Q. Do you know whether or not members of the
Metropolitan Police were watching Iva D 'Aquino?
A. Yes, I do.
Q. Do you know" the names of the Kempei Tai
who were watching Iva D 'Aquino?
A. There were two. I don't know the name of
one, but I do know the last name of one, which is
Tanaka.
Q. What became of the records of the Kempei
Tai?
774 Iva Ikuko Toguri B' Aquino
(Deposition of Katsuo Okada.)
Mr. De Wolfe: Object to that as incompetent,
irrelevant and immaterial.
The Court: Objection sustained.
(A. The papers connected with our work were
burned on approximately the tenth of August, 1945,
when it was obvious that we had lost the war.)
Q. Did you ever discuss the war with Iva
D 'Aquino *?
A. Do you mean during the war?
Q. Yes, during the war?
A. Yes, I have. [4]
Q. How many times ?
A. So many times that I cannot possibly count; |
Q. What did she say to you and what did you
say to her about the war? j
A. Fundamentally, the point that was brought
out was that Iva did not know when the war w^ould
be over but, finally, when the war was over Japan
would lose.
Q. What did you say to her when she told you
that information? j
A. As to who was going to win or lose the war i
was up to the way the individual thought. '^You,
as a person who has had long residence in the
United States, you know the strength of the United \
States well. So, it is probably correct that you j
say America is going to win the war. I don't want
to think that Japan will lose the war. For you to i
talk about the fact that Japan is going to lose the
war is not good because you will be violating Jap- |
vs, IJyiited States of America 775
(Deposition of Katsuo Okada.)
anese law and, therefore, I caution you that you
better not talk about this to outsiders. If you talk
about such things to people other than myself you
will be investigated by the Kempei gendarme and
the Metropolitan Police. I am also a Kempei, but
I am also your friend. I don't want to accuse you
of a crime, but I am going to caution you of this
as a friend."
Q. Did you have authority to arrest Iva
D 'Aquino, if you wished to do so?
A. Yes, I did.
Q. In your acquaintanceship with Iva D 'Aquino
did you consider her pro-American or pro- Japanese ?
Mr. De Wolfe: Object to that as calling for a
conclusion.
The Court: Objection sustained.
(A. I thought she was pro- American.)
Q. Was Iva D 'Aquino one of the Nisei watched
by the Kempei Tai, if you know ?
A. Yes, she was.
Q. Did Iva D 'Aquino ever participate in air
raid drills? [5]
A. I have never seen her.
Q. Did she ever tell you that air raid drills
were silly because Japan was going to lose the war,
or was losing the war?
A. She constantly said Japan would lose the
war, but she really had not much thought for air
raid drills, and she said air raid drills were things
for children to do.
776 Ivalkuko ToguriD' Aquino
(Deposition of Katsuo Okada.)
Q. Was she ever called a spy in the neighbor-
hood where she lived? <
Mr. De Wolfe: Object to that as hearsay, not
proper direct examination.
The Court: Objection sustained.
(A. The children used to call her ''spy" after
she had passed. I have heard this, but that defini- 1
tion of spy is in the broad sense, not in the narrow '
sense, meaning that anybody that did not help
Japan's effort was considered a spy. The first big i
air raid w^as the 10th of March, 1945. At that time
I was staying at Iva's home. The people in the
neighborhood were all outside preparing water. Iva
and Philip, looking in the distance where it was ,
burning, said in a loud voice: It's burning, it's
burning," they said incendiary bombs drop and
they said they were like fireworks, and were mak-
ing a lot of noise. As far as incendiaries were
concerned, they would drop one from a plane and '
then they would all scatter just like fireworks.
At that time I heard people in the neighborhood
yelling or saying: ''Spy," to them.)
Q. Do you know what nationality Philip '
D 'Aquino has? A. I do.
Q. What is his nationality ?
A. I heard that it was Portuguese.
Q. Do you know the nationality of Philip '
D 'Aquino's father? A. I have heard it.
Q. What was his nationality?
A. The same. Portuguese, so I have heard.
vs. United States of America 777
(Deposition of Katsuo Okada.)
Q. What became of Philip D 'Aquino's father
during the war, if you know?
A. I heard
Mr. De Wolfe: Object to that as incompetent,
irrelevant and immaterial.
The Court: Sustained.
(A. I heard that he was in Karuizawa during
the war with other foreigners.) [6]
Q. Was he forcefully taken from Tokyo or Yoko-
hama, do you know'?
Mr. De Wolfe: Same objection, sir.
The Court: Same ruling.
(A. During the war all those foreign nationals
of opposing countries were forcefully evacuated to
Karuizawa or Hakone.)
Q. Could a Nisei get into an alien internment
camp"?
Mr. De Wolfe: Object to that as incompetent,
irrelevant and immaterial ; calling for a conclusion.
The Court: Objection sustained.
(A. They did not go as their number was large.)
Q. Do you remember an occasion when Mrs.
Kido broke up with her relatives on account of Iva
and Philip D 'Aquino living with herl
Mr. DeWolfe: Just a moment, Mr. Tamba.
Object to that as incompetent, irrelevant and im-
material, hearsay, calling for a conclusion.
The Court: Sustained.
Mr. Collins : This goes to the question of whether
or not, if Your Honor please, there was any duress
778 Iva Ikuko Toguri D' Aquino
(Deposition of Katsuo Okada.)
in the neighborhood against the defendant which
compelled, or which caused the Kidos at least, to
think about ousting the defendant from their home.
The Court: Read the question. I don't recall
that that was embodied in the question.
(Question read.)
The Court: Objection sustained.
(A. The Kido home, in which Iva and Philip
were living was next to Kido's brother's home and
due to the fact that the neighbors did not say good
things about the D'Aquinos living in the house they
separated their relationship, but people next door i
(the brother's family) had encouraged them to put ■
out Iva and Philip.)
Q. Was Iva living with Mrs. Kido before she j
married D 'Aquino? j
A. She was living there before she was married. |
Q. Was she living there when you first met her'? j
A. The first time I met Iva was when she came
to visit the Kido's at the time I was there. Shortly
after I met Mrs. Kido and she had said, 'Hhat girl I
wants me to let her live here. ' '
Mr. De Wolfe: Object to that as hearsay.
The Court: Objection sustained.
Mr. DeWolf e : The balance of the answer is con- I
versation between a Mrs. Kido and this witness.
Mr. Collins : It goes to the question of the duress,
exercised upon the defendant, if Your Honor please,
concerning a place to live.
vs. United States of America 779
(Deposition of Katsuo Okada.)
The Court: That doesn't take it out of the
hearsay rule.
Mr. Collins: It is a question of advice given by
a Kempei tai who was an officer of the Japanese
government to the landlady where the defendant
resided.
The Court : The Court has ruled. Proceed. You
have a record.
(A. The first time I met Iva was when she came
to visit the Kidos at the time I was there. Shortly
after that I met Mrs. Kido and she said: ^^That
girl wants me to let her live there, but do you think
it is advisable?" I said: '^During the war, to let
foreigners live in your house will hamper your
relations with the neighbors, but if you caution that
foreigner well, so she does not commit any mis-
takes, and you are cautious yourself, I think it will
be all right to let them live there.")
Q. Do you know whether or not Iva ever bought
war bonds? A. She never bought any.
Q. Do you know whether or not the people of
Japan could change jobs during the war?
A. Do you mean Japanese people?
Q. Yes.
A. Japanese people could change their jobs.
Q. How about foreigners?
A. It was free for foreigners to change their
jobs, but depending on their jobs. [7]
Q. Was it easy for people who were foreigners
to get jobs in Japan during the war?
780 Iva Ikuko Toguri D' Aquino
(Deposition of Katsuo Okada.)
A. Even if they were good in Japanese it was
very hard.
Q. But Iva D 'Aquino spoke very good Japanese ?
A. She could speak well enough not to hamper
her daily living.
Q. Was it good Japanese?
A. If an ordinary person heard it they could
determine right away that she was a foreigner.
Q. Were you able to tell foreigners when you
heard them speak Japanese ?
A. When I first met her I could decide.
Q. Did you ever see a post card from the radio
station, Tokyo, ordering Iva D 'Aquino to return to
her work? A. Yes.
Mr. DeWolfe: Just a moment, Mr. Tamba. I
ask that answer go out and object to the question
on the ground that it calls for something not the
best evidence.
The Court: Read the question, Mr. Reporter.
(Question read.)
Mr. Collins: This does not ask for the content.
The Court: The objection will be sustained. Let
the answer go out.
Q. Were ordinary people permitted to talk with
prisoners of war?
A. Not ordinary townspeople.
Q. Do you know whether or not Iva D 'Aquino
bought food through the black market for prisoners
of war?
A. Yes, I know, but Iva did not buy the food
vs. United States of Amer'ica 781
(Deposition of Katsuo Okada.)
directly herself. She had Mrs. Kido buy it for her.
Q. Did Iva D 'Aquino ever tell you what kind of
work she was doing at the radio station ?
A. I asked her once.
Q. What did she tell you?
A. She said that ^^four or five days out of the
week I broadcast a script that was written by
prisoners of war or other people in Radio Tokyo.
The people that write that script are American
prisoners of war, and Australian soldiers, and Fili-
pino soldiers. Those people write it, and I broad-
cast in the evenings ten to fifteen minutes. ' '
Q. Did Iva D 'Aquino ever tell you that she dis-
cussed the war with [8] prisoners of war ?
A. Yes.
Q. What did she tell you about it ?
A. ^'The American, Australian and Filipino
soldiers cannot hear news about the war." The news
that she heard from other people she would write
on a little memo and when she went to Radio Tokyo
she would put it under something and give it to
them. The prisoners were very appreciative of this.
Q. Do you know whether or not Iva D 'Aquino
had access to short wave news broadcasts from the
United States?
A. I think she could listen to it at the broad-
casting station. At that time you could not listen
to it in town.
Q. Did she tell you that she had heard short
wave broadcasts? A. Yes, she did.
782 Ivalkuko ToguriD^ Aquino
(Deposition of Katsuo Okada.)
Q. Did she tell you that she got information
from her husband who was working for Domei?
A. Philip worked for Domei and there were
people that were listening to the short wave broad-
casts in Eadio Tokyo. Those people contributed to
her information.
Cross-Examination
By Mr. Storey:
Q. Mr. Okada, do you recall that you had a dis-
cussion with me immediately prior to this deposi-
tion? A. Yes, I do.
Q. Do you recall that during that discussion you
told me that you first met Mrs. D ^Aquino in Oc-
tober, 1944 '^
A. Yes, I do remember, but as to the date I
don't remember whether it was the eighteenth year
of Showa, which is 1943, or the nineteenth year of
Showa, which is 1944. I know it is the year that
Tojo quit.
Q. Mr. Okada, how long have you known Mrs.
Kido?
A. I am not sure of the year but I think it is I
1942 or 1943. |
Q. When did Iva move to the home of Mrs. \
Kido? [9]
A. I think it is the time when Tojo quit. |
Q. How far was your home from the home of I
Mrs. Kido?
A. In the Japanese way of counting, two and I
one-half EI to three RI. I
vs. United States of America 783
(Deposition of Katsuo Okada.)
Q. How often were you in the home of Mrs.
Kido?
A. At the most once a week, and when I was
busy, about once every two weeks.
Q. Where was Mr. Kido at this time ?
A. He was at war in Manchuria.
Q. When you first met Iva, was she married?
A. Do you mean with Philip ?
Q. Yes.
A. No, she had not married Philip.
Q. AVas Philip living there with Iva from the
time when you first met her ?
A. When I first met her she was just coming
there alone, and then — I am quite sure, but shortly
after that Philip came there.
Q. Approximately what date did Philip come
there %
A. The first time I was introduced to Philip was
about one month after I was first introduced to Iva.
Q. Was he living there at the time ?
A. He had a house in Atsugi and his baggage
was in Atsugi, and he would commute to the Tokyo
Domei from Atsugi, and there were times when he
would stay at Mrs. Kido, and times when he would
go directly home to Atsugi. Iva was in Atsugi be-
fore she came to Kido's place.
Q. Mr. Okada, do you consider yourself a very
close friend to the D 'Aquino's?
A. As the time that I was associated with them
was such as it was I think we were close friends,
but 1 do not know how thev felt.
784 Iva Ikuko Toguri B' Aquino
(Deposition of Katsuo Okada.)
Q. Mr. Okada, you have testified that you knew
that the Kempei Tai was watching Miss Toguri, did
the Kempei watch all foreign [10] nationals who
were registered in Japan ^
A. The Kempei kept surveillance over all neu-
trals and enemy country nationals.
Q. Did the Kempei also keep certain Japanese
nationals under surveillance? A. Yes.
Q. Did Iva know that you were a member of
the Kempei when you first met her and during your
later associations with her ?
A. Yes, she did.
Q. And during this time Iva was still very
friendly with you ? A. Yes.
Q. Mr. Okada, you have testified that you were
told
Mr. DeWolfe: I am not going to offer the next
question because it is related to hearsay matter that
went out on direct examination.
The Court : Very well.
Mr. DeWolfe: The next appears at line 17.
(Q. Mr. Okada, you have testified that you were
told Philip D 'Aquino's father was evacuted to a
recreational town, Karuizawa?
A. After the war, when D 'Aquino's father came
back to Atsuki I talked with him.)
Q. What other foreign nationals were evacuated'
to this area ?
A. I don't know in detail, but I know that the
foreigners were transferred — evacuated to Karui-
vs. United States of America 785
(Deposition of Katsuo Okada.)
zawa and Hakone, with the exception of those who
were necessary to Japan.
Q. Were these foreign nationals evacuated to
this area because they were considered dangerous
to the internal security of Japan?
A. That, and one more thing, that they did not
want any injuries to be brought on foreign na-
tionals by the Japanese.
Q. Then the Niseis were not considered danger-
ous to Japan — the ones who were working in
Tokyo?
A. That was not my responsibility to determine
that and, therefore, I do not know, but as the num-
bers of Niseis, Manchurians and Chinese were great
I do not think that they had the facilities to take
them away.
Q. Could any Japanese national quit any job at
any time he desired during the war ?
A. As far as principle was concerned, they were
free. Any healthy [11] people which were not work-
ing, according to a law, Choyorei, were forcefully
made to work in factories necessary to the war
effort. Those people were the same as soldiers and
unless they were taken sick, they were not allowed
to quit.
Q. If a Japanese national working in one of
these war factories were to be absent from his plant
would he receive a post card instructing him to come
back to work when he was physically able to work?
A. There were times when they were called out
786 Iva Ikuko Toguri B' Aquino
(Deposition of Katsuo Okada.)
by post card or the factory personnel would come
and take him off to the factory, and it was also a
crime for those who said they were sick if they were
not sick, or ran away.
Q. You have testified that Iva bought food which
she gave to the prisoners of war. What were these
prisoners of war doing in Japan at that time ?
A. In the case of Iva, most of them were work-
ing in the broadcasting station.
Q. They were working for the Japanese Govern-
ment at the broadcasting station'?
A. Yes, they were forcefully made to work there.
Q. What were they doing, were they broad-
casting %
A. I have never seen them but according to Iva's
story they would write script or broadcast.
Q. Mr. Okada, were you ever physically present
when Mrs. D 'Aquino was questioned by the Kem-
pei"? I mean when the Kempei was talking to Miss
Toguri personally'?
A. I have never seen her talking directly to the
Kempei Tai but I have seen her talk to the police.
Redirect Examination
By Mr. Tamba :
Q. Mr. Okada, the Kido family comes from the
town where you were born and reared ^
A. Yes, where Mr. Kido came from. [12]
Q. And you have been a friend of Mr. Kido's
for many years, I assume. A. Yes.
vs. U7iited States of America 787
(Deposition of Katsuo Okada.)
Q. Mr. Okada will you tell us how the Kempei
Tai investigated or worked on a case *?
Mr. DeWolfe: Objected to incompetent, irrele-
vant and immaterial.
Mr. Collins : The matter was developed on cross-
examination.
Mr. DeWolfe: I don't think it was gone into on
cross-examination.
The Court : What have you in mind ?
Mr. Collins: Well, as I say, it has a relation
with the balance of it. It is a question of how the
Kempei tai lists people and the type of surveillance
to which they subject them, depending upon their
classification as to whether they were foreign na-
tionals or Japanese nationals. It is a matter within
the personal knowledge of this Kempei tai master
sergeant.
The Court: In the interest of time I will
allow it.
A. Do you mean in regards to foreign nationals,
or somebody else ?
Q. In regards to foreign nationals, or any case
that was being investigated.
Mr. DeWolfe: Just a moment. Object to it as
incompetent, irrelevant and immaterial.
The Court: Objection will have to be sustained.
(A. Cases are started by people. That is why
you investigate the person first. Do you just mean
the Kempei Tai or the police too ?)
Q. Well, the Kempei Tai.
788 Iva Ikuko Toguri D^ Aquino
(Deposition of Katsuo Okada.)
Mr. DeWolfe: Same objection and then there is
an answer about a page long about investigational
procedure.
The Court: These matters have no relation to
this case.
Mr. Collins: If your Honor please, you see the
question was split, but it comes to a question of the
duties of Kempei tai in so far as foreign national
are concerned and the interference to which they
subjected foreign nationals, depending upon the
type what type they put them into; that is, either
they divided them into rightists or leftists.
The Court: Well, I don't know where I got this
thought, but it seems to me that rmming through
the record it appears that their duty was that of
a policeman in comparison with our own. Somebody
suggested that. Am I in error in that question?
Mr. Collins: It is little more than that. From
the deposition of this very officer of the Kempei .
tai. Because they were the thought control police. I
The Court: Read the question, Mr. Reporter. j
(Question read.) ,
Mr. De Wolfe : And then there is a long answer
that has no bearing on the facts or the defendant >
in this case. It is very general.
Mr. Collins: She falls in the classification as
being subjected to the interference of the Kempei
tai as a foreign national and this answer relates
directly to that, stating too, that every foreign na-
1/5. United States of America 789
(Deposition of Katsuo Okada.)
tional and one other type, have always two police-
men together with two Kempei tai attached.
The Court: It did not matter whether it was
two or four. The objection will be sustained.
(A. In the Kempei Tai there are books listing
foreign nationals, communists, rightists, and many
other such books, and among many Kempei Tai
they decide who is responsible for what. The Kem-
pei Tai has the responsibility for foreign nationals
or communists. They will first investigate their resi-
dence and then will question the neighbors as to the
necessary things. That is carried on during several
times, and from among those they would pick out
those who they think are suspicious. They will sur-
vey those which they consider especially suspicious
from what the neighbors say, and if they are a
foreigner and acting in a way of a spy they will
arrest them. If the communist is also conducting
underground activities they will arrest him, and on
one foreigner they will always have one Kempei
Tai from the headquarters and one from the sec-
tion There are also two from the police. In the
case that the foreigner or the communist moves the
Kempei will send their card to the Kempei detach-
ment in that area and the police will send their card
to the area to which the person has moved, and so
to every foreigner and communist there are always
two policemen and two Kempei attached.) [13]
790 Iva Ikuko Toguri D' Aquino
Japan,
City of Tokyo,
American Consular Service — ss.
I do solemnly swear that I will truly and impar-
tially take down in notes and faithfully transcribe
the testimony of Katsuo Okada, a witness now to
be examined. So help me, God.
/s/ MILDRED MATZ.
Subscribed and sworn to before me this 26th day
of April, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the United
States of America.
[American Consular Service Seal.]
Service No. 632a; Tariff No. 38; No Fee pre-
scribed.
Japan,
City of Tokyo,
American Consular Service — ss.
CERTIFICATE '
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the '
authority of a certain stipulation for taking oral |
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
vs. United States of America 791
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D 'Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
Tamba, counsel for the defendant Iva Ikuko Toguri
D 'Aquino I examined Katsuo Okada, at my office
in Room 335, Mitsui Main Bank Bulding, Tokyo,
Japan, on the twenty-sixth day fo April, A.D. 1949,
using as interpreter Makoto Masukata, who was by
me first duly sworn truly and impartially to inter-
pret the oath to be administered and interrogatories
to be asked of the witness out of the English into
the Japanese language, and truly and impartially
to interpret the answers of the witness thereto out
of the Japanese language into the English language ;
and that the said witness being to me personally
known and known to me to be the same person
named and described in the interrogatories, being
by me first sworn to testify the truth, the whole
truth, and nothing but the truth in answer to the
several interrogatories and cross-interrogatories in
the cause in which the aforesaid stipulation, court
order, and request for deposition issued, his evi-
dence was taken down and transcribed under my
direction by Mildred Matz, a stenographer who was
by me first duly sworn truly and impartially to
take down in notes and faithfully transcribe the
testimony of the said witness Katsuo Okada, and
after having been read over and corrected by him,
was subscribed by him in my presence; and I fur-
792 Iva Ikuko Toguri B' Aquino
ther certify that I am not counsel or kin to any
of the parties to this cause or in any manner inter-
ested in the result thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this 12th day of
May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Counsul of the United
States of America.
[American Consular Service Seal.]
Service No. 861; Tariff No. 38; No fee pre-
scribed.
[May 17, 1949.]
vs. United States of America 793
In the Southern Division of the United States
District Court for the Northern District of
California
No. 31712 R
UNITED STATES OF AMERICA,
Plaintiff,
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OF
KAZUYA MATSUMIYA
Deposition of Kazuya Matsumiya, taken before
me, Thomas W. Ainsworth, Vice Consul of the
United States of America, in Mitsui Main Bank
Building, Room 335, in Tokyo, Japan, under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of the United States of Amer-
ica vs. Iva Ikuko Toguri D 'Aquino, pending in the
Southern Division of the United States District
Court, for the Northern District of California, and
at issue between the United States of America vs.
Iva Ikuko Toguri D 'Aquino.
The plaintiff appearing by Frank J. Hennessy,
United States District Attorney ; Thomas DeWolf e.
Special Assistant to the Attorney General, and Noel
Storey, Special Assistant to the Attorney General,
794 Iva Ikuko Toguri D' Aquino
and the defendant, appearing by Wayne N. Collins
and Theodore Tamba.
The said interrogations and answers to the wit-
ness thereto were taken stenographically by Mildred
Matz and were then transcribed by her under my
direction, and the said transcription being there-
after read over correctly to the said witness by
me and then signed by said witness in my presence.
It Is Stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objections to the use of the
deposition, or any part of the deposition, by plain-
titf, on the plaintiff's case in chief, shall be reserved
to the time of trial in this cause.
KAZUYA MATSUMIYA
of Tokyo, Japan, of lawful age, and employed by
CI&B Section, SCAP, being by me duly sworn, de-
poses and says:
Direct Examination
By Mr. Tamba :
Q. What is your full name, sir ?
A. Kazuya Matsumiya.
Q. And what is your present business and oc- |
cupation ?
A. I am working as an adviser in the CI&E, J!
SCAP.
Q. And you were born in Japan ? A. Yes.
vs. United States of America 795
(Deposition of Kazuya Matsumiya.)
Q. You have had some education in the United
States, have you, sir % A. Yes.
Q. And what schools did you attend in the
United States'?
A. I attended Earlham University, Richmond,
Indiana.
Q. Do you hold a degree from that school ?
A. Yes.
Q. Was that a Quaker school? A. Yes.
Q. Did you attend any other schools in the
United States?
A. After graduating from Earlham I attended
for one year at Columbia University and did grad-
uate work there. [2*]
Q. Did you attend other schools there besides
those two you mentioned ?
A. After that I studied at Hartford Seminary,
from where I got a MA Degree.
Q. Have you taught in any American university?
A. Yes.
Q. In what university have you taught ?
A. University of California, Berkeley.
Q. How long did you teach there ?
A. One year.
Q. Do you know a person by the name of Iva
Toguri, also known as D 'Aquino? A. Yes.
Q. And when and where did you first meet this
person, sir ? A.I met her in Tokyo.
Q. Under what circumstances?
* Page numbering appearing at bottom of page of original
Reporter's Transcript.
796 Iva Ikuko Toguri D ^Aquino
(Deposition of Kazuya Matsumiya.)
A. She came to my father's school which is
called the School of Japanese Language and
Culture.
Q. When was that? Do you remember the year
and date'?
A. I don't remember the date and year exactly
but before the war, probably '40.
Q. Did she attend your school? Was she en-
rolled in your school ? A. Yes, she did.
Q. And for how long a period of time was she
in your school?
A. About a year and a half — she was a little less
than a year and a half.
Q. She registered there in September, 1941?
A. Before the war?
Q. Yes. A. I believe it was that.
Q. In any event she registered at your school
before the war? A. Yes. [3]
Q. Was your school destroyed in the air raids?
A. Yes.
Q. And the records of the school were de-
stroyed? A. Yes.
Q. And your school was a school which catered
to adult classes, to people who were either mission-
aries or in the diplomatic service, is that correct?
A. Yes.
Q. Do you know whether or not Iva Toguri had
a good knowledge of the Japanese language?
A. In my impression she was a rather poor stu-
dent in language.
vs. United States of America 797
(Deposition of Kazuya Matsumiya.)
Q. In other words, she did not know Japanese
very well ? A. Very little.
Q. And she did not have much aptitude for ac-
quiring a knowledge of the language ^
A. The main reason for that was she had not
attended a Japanese school in America. Ordinarily
Niseis who came to Japan had previously had train-
ing in Japanese schools in California — or in Amer-
ica, but she did not have much training in Japanese
in America.
Q. Now, do you know w4iat her financial condi-
tion was at the time she attended your school 1
A. Well, she was in a rather financially difficult
situation.
Q. Did you or your family do anything to assist
her financially ? A. Yes, I did.
Q. What did you do, sir ?
A. Well, firstly at that time I was writing a
book on Japanese grammar, in English, so that I
used her for typing the manuscript, and secondly,
my wife also gave her some work teaching piano
lessons to my children and our friends' children.
Q. And that was done in order to assist her to
pay her tuition, is that correct? [4] A. Yes.
Q. Can you tell us what her attitude was
towards the Japanese people generally, if you
know.
Mr. DeWolfe: Object to that as calling for a
conclusion.
798 Iva Ikuko Toguri I) 'Aquino
(Deposition of Kazuya Matsumiya.)
(A. Generally speaking she was rather critical
about the Japanese.)
Q. Do you know what the Kempei Tai organiza-
tion was, Mr. Matsumiya? A. Yes.
Q. What was that, sir ?
A. Well — organization of the Kempei Tai?
Q. Yes, in other words, they were the secret
police, were they not ?
A. Yes, they had that section of Kempei Tai.
Q. Did they ever check your school with refer-
ence to Iva Toguri?
A. Not specifically Miss Toguri, but my students
in general.
Q. How often did they check your school ?
A. They came about twice a week.
Q. Did any other Japanese organization check
your school with reference to Iva Toguri or any
of your other students ? A. The police.
Q. That would be the Metropolitan police ?
A. Yes, Atago Police Station.
Q. How often did they check your school with
reference to the students or Miss Toguri ?
A. About once a week, or so.
Q. Did any of these calls by the Kempei Tai
or the local police disturb your school program?
A. Well, they did not disturb the actual work
but certainly they disturbed me. I was executive
secretary.
Q. Did Miss Toguri have occasion to relate to
you her experiences in the United States ?
vs. United States of America 799
(Deposition of Kazuya Matsumiya.)
A. Yes, she did.
Q. With reference to what?
A. Well, she was telling me about her family,
and particularly [5] that she was working through
her college by assisting her father. For instance,
driving the trucks from the farm to the city. I
gathered she was very independent in a sense.
Q. From what you know of Miss Toguri and
her association with you while she was attending
your school, can you tell us whether she was pro-
American or pro- Japanese *?
Mr. DeWolfe: Object to that as calling for a
conclusion, incompetent.
The Court: Objection sustained.
(A. In my judgment she was rather pro-
American.
Q. Incidentally, do you specialize in any par-
ticular type of work ^,
A. Well, I am in measurement work.
Q. Have you ever done any work in social
psychology? A. Yes.
Q. You have had experience in that field of en-
deavor? A. Yes.
Q. Were you familiar with the conditions that
existed in Japan during the war with reference to
the Nisei people here ?
Mr. DeWolfe: Objected to as calling for a con-
clusion, too general.
The Court: Objection sustained.
(A. During the war all Niseis were in a very
800 Iva Ikuko Toguri D' Aquino
(Deposition of Kazuya Matsumiya.)
difficult position. Generally speaking you can divide
them up in two groups. One is rather pro-Japanese
and the other is pro-American, and, of course, the
pro- American group was in a more difficult position
than the other.)
Q. Do you have any knowledge of Miss Toguri
going to the American consulate in Yokohama in an
attempt to return to the United States ?
A. Yes.
Q. What information do you have on the
subject?
A. She told me she was trying to go back to
America but she could not succeed.
Q. Did she give you any reason for her inability
to successfully return to America? A. No.
Q. Incidentally, you left Tokyo at some later
date because you were suspected of being pro-
American yourself, is that right ?
Mr. De Wolfe: I object to that as incompetent,
irrelevant and immaterial.
The Court: Objection sustained.
Mr. Collins: And then cross-examination. [6]
^(A. Yes.)
Cross-Examination
By Mr. Storey:
Q. Mr. Matsumiya, when is the last time you
saw Miss Toguri ?
A. I have not seen her since she left the school.
Q. And give us your best recollection when Miss
Toguri entered your school.
vs. United States of America 801
(Deposition of Kazuya Matsumiya.)
A. It was before the war.
Q. Was it 1936, 1937?
A. I think it was about '40, 1 think.
Q. What is your best recollection ?
A. 1940, about that time, I think.
Q. How long did she remain in your school?
A. About a year and a half.
Q. After she left your school you never saw her
any more ? A. No.
Q. You never talked to her any more ?
A. No.
Q. Would you be able to recognize Miss Toguri?
If I showed you a group photograph would you
be able to recognize Miss Toguri among the other
Japanese persons?
A. What do you mean
Q. If I showed you several pictures of Japanese
would you be able to recognize her
A. Yes, I can recognize her.
Q. Did Miss Toguri ever indicate to you in a
conversation whom she wanted to win the war?
A. I don't remember exactly.
Q. When did you leave Tokyo, Mr. Matsumiya?
A. Well, it was March '44. I evacuated my fam-
ily to Karuizawa.
Q. During the time you knew Miss Toguri, did
you ever loan her any personal property to help
her out ? A. Please, again. [7]
(Question repeated by stenographer.)
A. Yes.
802 Iva Ikuko Toguri B^ Aquino
(Deposition of Kazuya Matsumiya.)
Q. What did you lend her ^
A. When she moved to a smaller room near the
school she borrowed a zabuton — a cushion.
Q. Did Miss Toguri ever return that cushion?
A. No.
Redirect Examination
ByMr. Tamba:
Q. Did Miss Toguri attend your school during
the war?
A. Yes, part of the time, I think. [8]
Japan,
City of Tokyo,
American Consular Service — ss.
I do solemnly swear that I will truly and impar-
tially take down in notes and faithfully transcribe
the testimony of Kazuya Matsumiya, a witness now
to be examined. So help me, God.
/s/ MILDRED MATZ.
Subscribed and sworn to before me this twenty-
fifth day of April, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the United
States of America.
[American Consular Service Seal] \
Service No. 617a; Tariff No. 38; No fee pre-
scribed.
\
vs. United States of America 803
Japan,
City of Tokyo,
American Consular Service — ss.
May 7, 1949.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March
22, 1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D 'Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
Tamba, counsel for the defendant Iva Ikuko Toguri
D 'Aquino I examined Kazuya Matsumiya, at my
office in Room 335, Mitsui Main Bank Building,
Tokyo, Japan, on the twenty-fifth day of April,
A.D. 1949, and that the said witness being to me
personally known and known to me to be the same
person named and described in the interrogatories,
being by me first sworn to testify the truth, the
whole truth, and nothing but the truth in answer
to the several interrogatories and cross-interroga-
tories in th(^ cause in which the aforesaid stipula-
804 Iva Ikuko Toguri D^ Aquino
tion, court order, and request for deposition issued,
his evidence was taken down and transcribed under
my direction by Mildred Matz, a stenographer who
was by me first duly sworn truly and impartially
to take down in notes and faithfully transcribe the
testimony of the said witness Kazuya Matsumiya,
and after having been read over and corrected by
him, was subscribed by him in my presence; and
I further certify that I am not counsel or kin to
any of the parties to this cause or in any manner
interested in the result thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this seventh day
of May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the United
States of America.
[American Consular Service Seal]
Service No. 828; Tariff No. 38; No fee prescribed.
[Endorsed] : Piled May 13, 1949.
vs. United States of America 805
In the Southern Division of the United States Dis
trict Court for the Northern District of Cali-
fornia.
No. 31712 R
UNITED STATES OP AMERICA,
Plaintiff.
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OF
LARS PEDERSEN TILLITSE
Deposition of Lars Pedersen Tillitse, taken before
me, Thomas W. Ainsworth, Vice Consul of the
United States of America, in Mitsui Main Bank
Building, Room 335, in Tokyo, Japan, under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of the United States of America
vs. Iva Ikuko Toguri D 'Aquino, pending in the
Southern Division of the United States District
Court, for the Northern District of California, and
at issue between the United States of America vs.
Iva Ikuko Toguri D 'Aquino.
The plaintiff, appearing by Frank J. Hennessy,
United States District Attorney; Thomas DeWolfe,
Special Assistant to the Attorney General ; and Noel
Storey, Special Assistant to the Attorney General;
806 Iva Ikuko Toguri D' Aquino
and the defendant, appearing by Wayne N. Collins
and Theodore Tamba.
The said interrogatories and answers of the wit-
ness thereto were taken stenographically by Irene
CuUington and were then transcribed by her under
my direction, and the said transcription being there-
after read over correctly to the said witness by me
and then signed by said witness in my presence.
It was orally stipulated between Mr. Tamba of the
defense, and Mr. Storey of the prosecution, that the
administering of the oath to the witness was waived.
It is stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objections to the use of the dep-
osition, or any part of the deposition, by plaintiff,
on the plaintiff's case in chief, shall be reserved to
the time of trial in this cause.
The witness stated that he had heretofore fur-
nished a written statement and that his Government
had given him permission to testify in accordance
with the contents of that written statement.
Direct Examination
By Mr. Tamba :
Q. Mr. Tillitse, you are the Minister from Den-
mark to Japan, is that right?
A. Yes, I w^as at that time; now^ I am thei
diplomatic representative.
vs, TJyiited States of America 807
(Deposition of Lars Pedersen Tillitse.)
Q. Mr. Minister, do you know Miss Iva Ikuko
Toguri^ A. Yes, I know her.
Q. She was employed by the Royal Danish Lega-
tion in Tokyo, Mr. Minister?
A. Yes, she was employed as a stenographer-
typist from the beginning of January, 1944, until
the Legation was closed in May, 1945, following
rupture of diplomatic relations between Denmark
and Japan.
Q. She was married in the spring of 1945, is
that correct? [2^]
A. She was married in the spring of 1945 to a
Portuguese subject, Mr. Philip D 'Aquino.
Q. Then her name changed?
A. Yes, to Mrs. D 'Aquino.
Q. What were her working hours at the Lega-
tion, Mr. Minister?
A. She worked daily at the Legation from 9 a.m.
to 4 p.m. on week days, except Saturday, when the
office closed at 12 Noon.
Q. Mr. Minister, what was her monthly salary?
A. The salary was in yen 150 from January,
1944, to June, 1944, and then yen 160 from July,
1944, to May, 1945. In January she received one
month's extra salary, at New Years time, as is the
custom in Japan.
Q. Mr. Minister, she worked for your office for
approximately 18 months ? A. That is correct.
Q. Did you become quite well acquainted with
her during that time, Mr. Minister?
* Page numbering appearing at bottom of page of original
Reporter's Transcript.
808 Iva Ikuko Toguri D' Aquino
(Deposition of Lars Pedersen Tillitse.)
A. Yes, quite well acquainted.
Q. Was she introduced to your family?
A. Yes; in the summer of 1944 she spent her
vacation in our bungalow at Karuizawa.
Q. Mr. Minister, you had certain conversations
with Miss Toguri, is that correct?
A. Yes, we talked about many things ; also about
the war.
Q. What impression did you get of Miss Toguri?
A. I got the impression that she was more like
an American than like a Japanese, because she had
been educated in America.
Q. Did she have difficulty, if you know, adjusting
herself to the Japanese way of life?
A. She often told me about the great difficulty
she had in the beginning in adapting herself to the
Japanese way of life. [3]
Q. Did she ever tell you that she regretted not
being allowed to return to the United States, Mr.
Minister?
A. Yes, she did that repeatedly. She wanted i
to return to the United States in the autumn of 1941, I
and she was very sorry that she was stranded in \
Japan during war time.
Q. Did she discuss the war with you during the ij
period of your acquaintanceship?
A. Yes, we often discussed the war, and I re-
member distinctly that she said that, of course, i
America would win the war and that it was mad-
ness on the part of Japan to try and attack the
vs. United States of America 809
(Deposition of Lars Pedersen Tillitse.)
United States, and I always took it for granted
that she wanted America to win the war.
Q. Mr. Minister, do you know whether or not
she was interrogated by the Japanese police about
her work at the Legation'?
A. Yes, when she started working for the Danish
Legation, she w^as interrogated by the Japanese
police about her work at the Legation, and I have
no doubt that she was questioned many times during
the period she worked for us.
Q. Did she tell you that, Mr. Minister?
A. I cannot recall it, but it w^as common knowl-
edge at that time that the police took special inter-
est in all persons who worked for foreigners
Q. You never knew, Mr. Minister, that she
worked as a broadcaster at Radio Tokyo *?
A. No, I never knew^ that; she never told me
she had such employment.
Q. Did she often tell you news that she had
heard?
A. Yes, she would tell me news she had heard
from broadcasting people, but I knew she had many
friends and I found it quite natural that she was
well acquainted with those subjects.
Q. Did you know what her husband's occupation
was, Mr. Minister?
A. I thought he was with broadcasting station,
but I am not quite [4] sure.
Q. Did you know the nationality of her husband ?
A. 1 think he was half Portuguese and half
810 Iva Ikuko Toguri D^ Aquino
(Deposition of Lars Pedersen Tillitse.)
Japanese. By citizenship he was Portuguese and
he had a Portuguese passport.
Q. You did not learn of Mrs. D 'Aquino's trouble
until some time in 1945, is that correct, Mr.
Minister'?
A. Not until autumn of 1945 when I was back
in Denmark. I think it was in ^'Newsweek" or
^^Time" that she had been arrested by the occupation
authorities in Japan, under suspicion of treason
in connection with her radio work.
Q. Was this a surprise to you, Mr. Minister?
A. I was greatly surprised. I was also worried
because I knew she was fond of America and be-
cause I had never heard of her connection with
Radio Tokyo.
Q. That is all.
Cross-Examination
By Mr. Storey:
Q. Mr. Minister, when did you first meet Mrs.
D 'Aquino?
A. When she came to apply for a position in
my Legation.
Q. That was in January, 1944?
A. Either in December, 1943, or January, 1944.
Q. During the period of time that Miss Toguri
worked for you, was she absent for any prolonged
period of time?
A. No, she was very regular
Q. Were you ever present when she was ques-
tioned by the police? A. Never.
vs. United States of America 811
(Deposition of Lars Pedersen Tillitse.)
Q. All you know concerning her interrogation
by the police was what she told you herself?
A. Yes. It was so customary at that time that
anybody who had anything to do with foreigners
would be questioned. All of my Japanese servants
were questioned, too.
Q. During the entire time that Miss Toguri
worked for you she concealed the fact that she was a
member and doing broadcasting [5] work at Eadio
Tokyo?
A. She never told me about it.
Q. That is all.
/s/ L. TILLITSE.
Japan,
City of Tokyo,
American Consular Service — ss.
I do solemnly swear that I will truly and im-
partially take down in notes and faithfully trans-
cribe the testimony of Lars Pedersen Tillitse, a
witness now to be examined. So help me God.
/s/ IRENE CULLINGTON.
Subscribed and sworn to before me this 17th day
of May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal]
Service No. 904a ; Tariff No. 38 ; No fee prescribed.
812 Iva Ikuko Toguri D^ Aquino
Japan,
City of Tokyo,
American Consular Service — ss.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D 'Aquino, do hereby
certify that in pursuance of the aforesaid stipulation
and court order and at the request of Theodore
Tamba, counsel for the defendant Iva Ikuko Togxiri
D 'Aquino, I examined Lars Pedersen Tillitse, at
my office in Room 335, Mitsui Main Bank Building,
Tokyo, Japan, on the seventeenth day of May, A.D.
1949, and that the said witness being to me person-
ally known and known to me to be the same person
named and described in the interrogatories, being
the accredited Diplomatic Representative of the
Kingdom of Denmark to the Supreme Commander
for the Allied Powers, declared that he had received
the permission of his Government to waive his diplo-
matic immunity to give testimony in this cause ; and
vs. United States of America 813
that administering of the oath to the witness being
waived by oral stipulation between Noel Storey, ap-
pearing for the plaintiff, and Theodore Tamba,
appearing for the defendant, his evidence was taken
down and transcribed under my direction by Irene
Cullington, a stenographer who was by me first duly
sworn truly and impartially to take down in notes
and faithfully transcribe the testimony of the said
witness Lars Pedersen Tillitse, and after having
been read over by him and he having declared that
the transcription was correct without alteration was
subscribed by him in my presence; and I further
certify that I am not counsel or kin to any of the
parties to this cause or in any manner interested
in the result thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this twenty-first
day of May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal]
Service No. 957 ; Tariff No. 38 ; No fee prescribed.
[Endorsed] : Filed May 26, 1949.
814 Iva Ikuko Toguri D^ Aquino
In the Southern Division of the United States Dis-
trict Court for the Northern District of Cali-
fornia.
No. 31712 R
UNITED STATES OP AMERICA,
Plaintiff.
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OP K. W. AMANO
Deposition of K. W. Amano, taken before me,
Thomas W. Ainsworth, Vice-Consul of the United
States of America, in Mitsui Main Bank Building,
Room 335, in Tokyo, Japan, under the authority
of a certain stipulation for taking oral designations
abroad, and upon order of the United States Dis-
trict Court, made and entered March 22, 1949, in the
Matter of the United States of America vs. Iva
Ikuko Toguri D 'Aquino, pending in the Southern
Division of the United States District Court, for
the Northern District of California, and at issue
between the United States of America vs. Iva Ikuko
Toguri D 'Aquino.
The plaintiff appearing by Prank J. Hennessy,
United States District Attorney; Thomas DeWolfe,
Special Assistant to the Attorney General ; and Noel
Storey, Special Assistant to the Attorney General;
and the defendant, appearing by Wayne N. Collins
and Theodore Tamba.
The said interrogations and answers to the witness
vs. United States of America 815
thereto were taken stenographically by Mildred
Matz and were then transcribed by her under my
direction, and the said transcription being thereafter
read over correctly to the said witness by me and
then signed by said witness in my presence.
It is Stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objection to the use of the
deposition, or any part of the deposition, by plain-
tiff, on the plaintiff's case in chief, shall be reserved
to the time of trial in this cause.
K. W. AMANO
of Tokyo, Japan, physician and surgeon, of lawful
age, being by me duly sworn, deposes and says :
Direct Examination
By Mr. Tamba:
Q. Dr. Amano, you were born in Japan, is that
correct '^ A. Yes.
Q. And your profession is that of physician and
surgeon f A. Yes.
Q. Where did you get your medical training?
A. In Japan and in the States.
Q. What schools did you attend in the United
States, if any?
A. University of Pennsylvania
Q. How long were you at the University of
Pennsylvania ?
816 Iva Ikuko Toguri D^ Aquino •
(Deposition of K. W. Amano.)
A. From 1929 to 1932. I got a Degree of Doctor
of Science in Medicine there.
Q. Have you practiced medicine in the United
States? A. Yes.
Q. And where, sir ?
A. In Seattle from '25, 1925 to 1929, and Los
Angeles, '32 to '34.
Q. Are you a member of any medical society
in the United States'?
A. I was a member of the American Medical
Association and the American Academy of Ophthal-
mology and Otolaryngology. [2*]
Q. In the language of the layman, you were a
specialist of eyes, throat, nose and ear ailments?
A. Yes.
Q. And that is what those terms mean, isn't that
so. Doctor? A. Yes.
Q. Have you been a member of any state medical
societies in the United States?
A. Yes, in the state of Washington.
Q. Are you a member of the California State
Medical Society, or were you a member ?
A. Let me see, I did practice two years, it's so
long since I came back, and after doing research at
the University of Pennsylvania, I dropped the con-
nection with the state medical society, I had not
joined, I think, but I did have a connection with
the College of Medical Evangelists teaching.
Q. Were you connected with any schools?
* Page numbering appearing at bottom of page of original
Reporter's Transcript.
vs. United States of America 817
(Deposition of K. W. Amano.)
A. At the College of Medical Evangelists as in-
structor, and University of Southern California
Medical School.
Q. Doctor, since you won't be in the states as a
witness in this case, I want to ask you some other
questions. You are a personal friend, and have been
physician to Ambassador Grew, isn't that so?
A. Yes.
Q. You and your wife have treated him and
his wife? A. Yes.
Q. And you are the doctor he mentioned in his
book?
A. Yes, my wife 's name is mentioned as she gave
the typhoid injection.
Q. And your wife is also a physician and sur-
geon ? A. Yes.
Q. And she was educated in the United States,
although born in Japan? [3]
A. Yes, born in Japan.
Q. And you have traveled extensively and studied
in other foreign countries? A. Yes.
Q. What other foreign countries?
A. France, Italy, Germany and Austria, and
England, I mean, excuse me.
Q. And in your discussion with me prior to
coming here to the Diplomatic Section, you took the
position that you were neither pro-Japanese, nor
pro-American, but an internationalist.
A. Of course, my education is in both America
and as a Japanese race, what should I say, I am
818 Iva Ikuko Tognri D^ Aquino
(Deposition of K. W. Amano.)
Japanese in some way and in some way I am
American, too, but as a medical scientist I am an
internationalist.
Q. Doctor, prior to the war and during the war
you treated the foreign nationals in Japan, is that
correct ?
A. Yes, the last fifteen years from 1934 we had
a connection with all foreign diplomats, missionaries
and business men.
Q. And how many different classes of foreign
nationals did you treat, can you tell us approxi-
mately %
A. American, British, Belgian and I think about
twenty-five other foreign missions, embassies and
legations, and practically all countries.
Q. Do you know a person by the name of Iva
Toguri also known as Iva D 'Aquino.
A. Yes, I knew her since she came here, to
Japan, I understand
Q. And when did you first treat her medically?
A. Right after she arrived to Japan. That was
around, I -cannot recall the date but in 1941, I think.
Q. What kind of treatment did you administer
then? A. Typhoid injections.
Q. After the war did you treat Mrs. D 'Aquino
again professionally? [4]
A. You mean during the war. After the war
broke out?
Q. Yes. A. Yes.
Q. What was her ailment?
A. She had sinus infection, connected with the
vs. United States of America 819
(Deposition of K. W. Amano.)
ear, otitis media, and sinus and beri-beri, connected
with malnutrition.
Q. Now, during the course of treatment, did you
have occasion to become quite well acquainted with
the defendant? A. Yes.
Q. Did you have occasion to discuss the war
with her? A. Yes.
Q. Or the progress of the war Avith her from
time to time? A. Yes.
Q. Was that several times, doctor?
A. Yes, I think so. That was around the time
of the battle for the Philippines, or a sea battle,
which year I -cannot recall.
Q. In your meetings with her and discussion of
the war did you form an opinion or conclusion as
to her allegiance to the United States of America?
A. Yes, that is definite.
Q. What was her allegiance, w^as she pro-
American or pro- Japanese ?
A. Her attitude was entirely definitely American.
Q. Can you recall anything in those discussions
to indicate that she was definitely American?
A. Because whatever she is, American or Japa-
nese, one is not supposed to tell anything against
or about Japanese defeat.
Q. Did she mention that the Japanese would be
defeated? A. Yes.
Q. Doctor, what be<3ame of the records of your
treatment of her and other foreign nationals during
the war? What did you do with those records?
820 Iva Ikuko Toguri D ^Aquino
(Deposition of K. W. Amano.)
A. Before I evacuated from Tokyo I discarded
them because the [5] Kempei-tai might use it
against them, my patients, and also for myself.
Q. In other words, those records were all de-
stroyed ? A. Yes.
Q. Did either you or your wife have occasion
to treat the defendant and her husband after the
war ? A. Yes.
Q. What treatment was administered to them?
A. 1947, after she came out of prison she came
for — Mr. D 'Aquino came for ear and nose treat-
ment and Mrs. D 'Aquino came for pregnancy check
by my wife.
Q. That was after she got out of Sugamo Prison?
A. Yes and we treated her until her nine months
of pregnancy.
Q. You say you evacuated from Tokyo, where
did you go? A. To Karuizawa.
Q. Was that the place where foreign nationals
were interned? A. Yes.
Q. And you treated foreign nationals there?
A. Yes.
Q. Were you checked by the Kempei-tai there?
A. We were always checked and once I was
ordered to come down to Tokyo, but I refused, and
they came to Karuizawa to quiz for two days.
Q. In your discussions with Mrs. D 'Aquino you
knew that she had access to foreign or allied news
broadcasts, didn't you. Doctor? A. Yes.
Q. She told you that? A. Yes.
vs. United States of America 821
(Deposition of K. W. Amano.)
Q. And at one time in the summer of 1944 you
left her in charge of your home ?
A. Of the clinic, yes, to stay.
Q. How long did she stay there ? [6]
A. I forgot, but just one summer season or prob-
ably between two or three months. That was in
1943, two or three, I cannot recall that.
Q. Doctor, did you have any knowledge of her
having trouble, financially?
A. Yes, that is how she got the job in the broad-
casting station, she told me.
Q. She was having financial difficulties?
A. Because her money was cut off, her commu-
nication from her father.
Q. Did she ever tell you she hated Japan and
wished she had been back in America?
A. I cannot recall whether she mentioned that
but she was not so happy here, I am sure, because
she had the difficulty of life here.
Cross-Examination
By Mr. Storey:
Q. Doctor, were you ever an American citizen?
A. Me?
Q. Yes.
A. As you know, Japanese not allowed to na-
turalize— Japanese cannot naturalize, that is why
I came back with a return permit. I entered the
country before 1924 so I could stay there forever.
So as an alien I could stay, but I came to Japan.
822 Iva Ikuko Toguri D' Aquino
(Deposition of K. W. Amano.)
I was invited by the university so I came with a
return permit. Still I hold that.
Q. Doctor, when did you leave Tokyo and your
clinic ?
A. I think March, 1943. The year the war broke
out, and in '42 I treated all the Americans, that
was June, when the Americans left. In 1944 after
Italy surrendered, in February the Ambassador's
wife came and stayed until summer. Toguri stayed
before that year, I think. No, after that Toguri
stayed.
Q. How often did you return to Tokyo after
you moved from Tokyo '? A. Oh, once a week.
Q. Did you stay long in Tokyo when you came?
A. Just two or three days. I had to see the pa-
tients, and later I could come only once a month to
see if the house was standing or burned.
Q. Did you see Mrs. D 'Aquino there often dur-
ing the time you returned to Tokyo, after you left ?
A. One summer she stayed, and I think that year
I treated her, but I don't know how often I saw
her but I think not less than twenty times I think
during the war. I saw her in Karuizawa. She came
for the shots or for the certificates. Yes, for the
vitamin shots she came to Karuizawa.
Q. What year was that?
A. We stayed two years. When she was there I
cannot remember, but during the war.
Q. How far is Karuizaw^a from Tokyo?
A. About four hours ride on the train.
I
vs. United States of America 823
(Deposition of K. W. Amano.)
Q. Was it true that people had to have per-
mission during those days to travel?
A. For the foreign nationals only, but Japanese
could go without permit.
Q. How often did Miss Toguri come to Karui-
zawa ?
A. I think she dropped in two or three times.
She said she was staying at Mrs. Tillitse, the Danish
Minister's house. I think she was working there at
that time. She was working there at the same time
she w^as working at the broadcasting station. I
don't know exactly about her job. Yes, she men-
tioned that she was working there.
Q. Doctor, give us your best recollection as to
the number of times Mrs. D 'Aquino discussed the
war with you during the war. Was it once or twice,
or two or three times ?
A. She came up with a Filipino prisoner of w^ar,
Mr. Reyes, as a patient. Of course a couple of times
only, so we discussed it [8] not only on that occasion
but whenever she came we discussed, maybe three or
four times.
Q. And you gained the idea that she was pro-
American from these discussions you had with her"?
During those three or four discussions?
A. Yes.
Re-Direct Examination
By Mr. Tamba :
Q. Do you know if Tillitse 's wife had a summer
home in Karuizawa? A. Yes.
824 Iva Ikuko Toguri D' Aquino
(Deposition of K. W. Amano.)
Q. Doctor, you say she was at Mr. Tillitse's home
in Karuizawa when she called on you?
A. Yes.
Q. You mentioned this Italian woman you took
into your home. Why did you take her into your
home ?
A. She had a great difficulty and discomfort in
living in the Italian camp.
Q. How long did you keep her there ?
A. February to — about six months.
Q. Were you interviewed by the Kempei-tai be-
cause you had her in your home ?
A. Not for that because she still — a Metropolitan
Police Board official arranged with the regular po-
liceman for the benefit of her because she was a
nervous wreck and she needed treatment and we
took her in our place but finally the head of the
Metropolitan Police Board came and took her back
to the camp against her will.
Re-Cross-Examination
By Mr. Storey:
Q. You have mentioned an internment camp at
Karuizawa
A. No, I mean internment camp at Denenchofu
for the Italians but there was no internment camp
in Karuizawa. Karuizawa was an open place for
the German refugees, from the East Indies, and [9]
half of the Soviet Embassy people evacuated from
here and was allowed to stay at Hotel Mampei, not
internment, and they went back to, I think they
vs. United States of America 825
(Deposition of K. W. Amano.)
went to Hakone when the war broke out, but in the
beginning thev moved to Karuizawa. We delivered
a few Soviet babies.
Q. Was there an internment camp where these
people were gathered and put into some camp and
were guarded "^
A. Yes. Italians, because since Mussolini's gov-
ernment dropped these people of the Embassy w^as
taken, except those four Bodolio — some commercial
attache was investigated afterwards but all taken
first to the camp.
/s/ K. W. AMANO.
Japan,
City of Tokyo,
American Consular Service — ss.
I do solemnly swear that I will truly and impar-
tially take down in notes and faithfully transcribe
the testimony of K. W. Amano, a witness now to be
examined. So help me God.
/s/ MILDRED MATZ.
Subscribed and sworn to before me this 2nd day
of May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 733a; Tariff No. 38; No fee pre-
scribed.
826 Iva Ikuko Toguri D' Aquino
Japan,
City of Tokyo,
American Consular Service — ss.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a -certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D 'Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
Tamba, counsel for the defendant Iva Ikuko Toguri
D 'Aquino I examined K. W. Amano, at my office
in Eoom 335, Mitsui Main Bank Building, Tokyo,
Japan, on the second day of May, A.D. 1949, and
that the said witness being to me personally known
and known to me to be the same person named and
described in the interrogatories, being by me first
sworn to testify the truth, the whole truth, and
nothing but the truth in answer to the several inter-
rogatories and cross-interrogatories in the cause in
which the aforesaid stipulation, court order, and
vs. United States of America 827
request for deposition issued, his evidence was taken
down and transcribed under my direction by Mil-
dred Matz, a stenographer who was by me first duly
sworn truly and impartially to take down in notes
and faithfully transcribe the testimony of the said
witness K. W. Amano, and after having been read
over and corrected by him, was subscribed by him
in my presence ; and I further certify that I am not
counsel or kin to any of the parties to this cause
or in any manner interested in the result thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this 19th day of
May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 933 ; Tariff No. 38 ; No fee prescribed.
828 Iva Ikuko Toguri D ^Aquino
In the Southern Division of the United States
District Court for the Northern District of
California.
No. 31712 R
UNITED STATES OP AMERICA,
Plaintife,
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OP UNAMI KIDO
Deposition of Unami Kido, taken before me,
Thomas W. Ainsworth, Vice Consul of the United
States of America, in Mitsui Main Bank Build-
ing, Room 335, in Tokyo, Japan, under the au-
thority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of the United States of Amer-
ica vs. Iva Ikuko Toguri D 'Aquino, pending in the
Southern Division of the United States District
Court, for the Northern District of California, and
at issue between the United States of America vs.
Iva Ikuko Toguri D 'Aquino.
The plaintiff appearing by Prank J. Hennessy,
United States District Attorney; Thomas DeWolfe,
Special Assistant to the Attorney General, and
Noel Storey, Special Assistant to the Attorney Gen-
eral, and the defendant, appearing by Wayne N.
Collins and Theodore Tamba.
vs. United States of America 829
It appearing that the witness Unami Kido could
not intelligently testify in the English language
and did well understand the Japanese language,
one Nobuo Nishimori, w^ho also well understands
said language, was employed as interpreter, and
was sworn in as follow^s:
*^You do solemnly swear that you know the Eng-
lish and Japanese languages and that you will
truly and impartially interpret the oath to be ad-
ministered and interrogatories to be asked of Unami
Kido, a witness now to be examined, out of the
English language into the Japanese language, and
that you will truly and impartially interpret the
answers of the said Unami Kido thereto out of
the Japanese language into the English language,
so help you God/'
The said interrogatories and answers of the wit-
ness thereto w^ere taken stenographically by Irene
Cullington and w^ere then transcribed by her under
my direction, and the said transcription being
thereafter read over correctly to the said witness
by me and then signed by said witness in my pres-
ence.
It is stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objections to the use of the
deposition, or any part of the deposition, by plain-
tiff, on the plaintiff's case in chief, shall be re-
served to the time of trial in this cause.
830 Iva Ikuko Toguri D^ Aquino
UNAMI KIDO
of Tokyo, Japan, of lawful age, being by me duly
sworn, deposes and says:
Direct Examination
By Mr. Tamba:
Q. Mrs. Kido, what is your occupation?
A. Housewife.
Q. Mrs. Kido, what is your husband's name?
A. Mitsuyoshi Kido.
Q. Where was he during the war? [2^]
A. He was in Manchuria.
Q. Do you know a man by the name of Katsuo
Okada? A. Yes, I do.
Q. How long have you known him?
A. About seven, eight or probably ten years.
Q. Is he a friend of your husband?
A. They hail from the same place.
Q. Do you know a woman by the name of Iva
Toguri D 'Aquino? A. Yes.
Q. When did you first meet her?
A. I first met her on October 25, 1944, and she '
has been living at my place since the 27th of that '
month.
Q. Was that the first time you met her? j
A. Yes.
Q. Did she come to see you about getting a room ij
at your house?
A. She came back from America with a niece ,
of a '^go-between" whom I know. My husband Ij
* Page numbering appearing at bottom of page of original
Reporter's Transcript.
vs. United States of America 831
(Deposition of Unami Kido.)
was away in Manchuria and my children were
sent to the country, so this "go between '' asked
me to rent a room for them.
Q. This man was the "go between" for you and
your husband? A. Yes.
Q. Is it the custom among Japanese to ask the
advice of a "go between" with respect to anything
they do?
A. Yes, in my case I consulted the '^go between"
because my husband had requested it.
Q. Did your ^^go betw^een" tell you to take Iva
in as a roomer?
A. The ^^go between" told me I ought to be
lonesome and that I had a large house, so how
about taking her in.
Q. Did you discuss the question of Mrs.
D Aquino moving in with Mr. Okada?
A. Regarding taking these people in my house,
I told Mr. Okada that w^e were reprimanded for
even sympathizing wdth prisoners [3] of war, and
Mr. Okada, being a kempei, I asked him whether
it would be feasible to accommodate these persons.
Q. What did Mr. Okada tell you?
A. Mr. Okada said that she, being a woman,
wouldn't do anything particularly bad, so I would
be able to keep her.
Q. When you refer to ''she being a woman"
you mean Iva? A. Yes.
Q. Did Okado tell you he would do anything
to protect you?
A. What do you mean by ''protect you"?
832 Iva Ikuko Toguri D' Aquino
(Deposition of Unami Kido.)
Q. Did he tell you that he would come around
your place often so no suspicion would be had?
Mr. De Wolfe: Objected to as hearsay and in-
competent, Your Honor.
The Court: Objection sustained.
(A. He said that she is an American citizen,
in other words a Nisei, so I will come around here
once in a while.)
Q. Did Mr. Okada come around your home once
in a while when Iva was living there?
A. He came around about once a week, and de-
pending upon his duty, he came around once in
two weeks.
Q. Do you remember, Mrs. Kido, when the
Kempei came to your home and Okada was there?
A. Yes.
Q. What did Okada say to the Kempei-tai?
Mr. De Wolfe: Object to that as hearsay, incom-
petent.
The Court: Objection sustained.
(A. I heard it later from Mr. Okada that he
said to the Kempei-tai, ^^She is a relative of mine,
so leave that to me.")
Q. Did you see Okada talk to the Kempei-tai i
at that time? A. No, I did not see.
Q. Do you remember the Kempei-tai coming
around and making inquiry about your husband? \
A. Yes, they came around but I was absent, so \
they inquired of my niece.
Q. Your niece told you about it? A. Yes. ?
vs. United States of America 833
(Deposition of Unami Kido.)
Q. Did you talk to Iva D 'Aquino about that
afterwards? [4]
A. I didn't know this Kempei came to inquire
about Iva. I thought he came to inquire about my
husband.
Q. Did Iva tell you that the Kempei-tai were
not inquiring about your husband but were in-
quiring about her?
A. Yes. I told Iva that I was worried about
something my husband had done in Manchuria,
and at that time she told me that the Kempei-tai
were inquiring about her, Iva.
Q. Did the police come to your home and ask
about Iva?
A. They just asked whether or not Iva was
home?
Q. How often did the police come there?
A. About two or three times a month.
Q. Did you ever see Iva talk with Mr. Okada?
A. Yes.
Q. And that was in your home? A. Yes.
Q. Philip D 'Aquino came to live in your home
later, is that right? A. Yes.
Q. And he and Iva were married?
A. Yes; they lived together after they were
married.
Q. Did you have any trouble with your relatives
next door because you gave Iva a room?
Mr. De Wolfe: Object to that as incompetent,
irrelevant and immaterial.
The Court: Objection sustained.
834 Iva Ikuko Toguri D^ Aquino
(Deposition of Unami Kido.)
(A. Yes.)
Q. What did your relatives say to you about
Iva*?
Mr. De Wolfe: Objected to as hearsay and in-
competent.
The Court: Objection sustained.
(A. You mean because she stayed in my room?)
Q. Did they say anything about Iva being pro-
American %
Mr. DeWolfe: Same objection, Judge.
The Court: Same ruling.
(A. Yes.)
Q. Did they tell you you should not have her
there ?
Mr. DeWolfe: Object to that as immaterial and
hearsay.
The Court: Objection sustained.
(A. They didn't think it advisable to have such
people in my home.)
Q. Your relatives don't talk to you, even today,
is that correct, Mrs. Kido, over Iva?
Mr. DeWolfe: Object to that as incompetent,
irrelevant and immaterial, hearsay.
The Court: Objection sustained.
(A. That's correct.) [5]
Q. Why did you take Iva into your home?
A. As I said before, my ^^go between" had
made the request.
Q. Did you tell me, Mrs. Kido, before coming
here about an hour ago, that the reason you
wanted Iva there was because you wanted to help
vs. United States of America 835
(Deposition of Unami Kido.)
a foreigner in a strange land, because your husband
was away from home?
Mr. DeWolfe: Object to that as incompetent,
hearsay.
The Court: Objection sustained.
(A. Yes, my husband was on foreign soil and
I understood her position.)
Mr. DeWolfe: Object to that as incompetent,
hearsay.
The Court: Objection sustained.
Q. Did you ever hear the neighbors call Iva
a spy?
A. When there were air raids there w^as con-
fusion and for that reason I heard that people
said such things, but I did not hear it directly.
Q. Did you hear anybody call Iva a spy be-
cause she had a Christmas tree at one time?
Mr. DeWolfe: Object to that as calling for a
conclusion, hearsay, incompetent, sir.
The Court: The objection will be sustained.
(A. Yes.)
Q. Do you know what kind of work Iva was
doing during the time of the war?
A. I knew that she was going to the broadcast
station, but I did not know what kind of work she
was doing.
Q. Do you remember Iva remaining away from
the broadcasting station?
A. Yes, I remember.
Q. Do you remember Iva receiving a card from
the broadcasting station?
836 Iva Ikuko Toguri D^ Aquino
(Deposition of Unami Kido.)
A. Yes, I read it to her.
Q. What did the card say, if you remember?
A. It just said to come to work.
Q. Did she go to work?
A. I can't recall clearly, but I think she did
not go out immediately, but I think she went out
two or three days later.
Q. Do you remember a man coming to your
home from the [6] broadcasting station?
A. She did not go after receiving a letter, so
a person came.
Q. Did he order her to return to work?
A. I do not know because he met Iva.
Q. Did you know the man's name?
A. I remember it was a man, but I don't know
the name.
Q. Do you remember Iva remaining away from
the broadcasting station? A. Yes.
Q. For how long a period did she remain away
from the broadcasting station?
A. She was absent most of the time from April,
Q. What year? A. 1945.
Q. Did Iva ever discuss the war with you?
A. It was not exactly a discussion, but she said
there was no chance of Japan winning the war.
Q. Did you buy things on the black market dur-
ing the war? A. Yes, I did.
Q. For yourself and Iva?
A. Yes; at first I bought for myself and for
Iva. Later Iva was taking it out. She once told
vs. United States of America 837
(Deposition of Unami Kido.)
me that it was secret and not to reveal to anyone
because I would get in trouble as well as she. And
I asked her what was the matter and she said she
was taking it to sick prisoners of war.
Q. When she left your home on these occasions,
did she leave with a bag?
A. Yes, she always carried a bag.
Q. And was that full?
A. There might have been some cosmetic kit in
it, also.
Q. Do you know if Iva ever bought war bonds?
A. No, she did not buy them. [7]
Q. Did she ever collect metal ware, old clothes
or cotton to help the war effort?
A. She never did.
Cross-Examination
By Mr. Storey:
Q. Mrs. Kido, were you ever present when Iva
was questioned by the Kempei?
A. At home you mean?
Q. At any place? A. No.
Q. Mrs. Kido, w^ere you ever present when Iva
was questioned by the police?
A. The police authority came two or three times
a month, but w^hen they did talk, I don't know
what they talked about.
Q. Mrs. Kido, were you ever present in your
home when the police talked to or questioned Miss
D 'Aquino?
838 Iva Ikuko Toguri D' Aquino
(Deposition of Unami Kido.)
A. I was in the house, but I do not know what
they talked about.
Q. Did the Kempei ever question you about
Mrs. D 'Aquino while she lived at your house?
A. The Kempei-tai did not talk to me directly
but they did talk to Mr. Okada and Okada told
them that 'Hhis is the home of one of my relatives,
so let me handle this matter." Then after that
the Kempei did not come to my home.
Q. Did Mrs. D 'Aquino know that Mr. Okada
was a member of the Kempei-tai"?
A. I told her.
Q. Was Mrs. D 'Aquino friendly with Mr.
Okada?
A. He was my relative and we all talked to him.
Q. Were Mrs. D 'Aquino and Mr. Okada
friends ?
A. I introduced them and I do not know
whether you would call that friends or not.
Q. Did Mrs. D 'Aquino have any conversations
with Mr. Okada?
A. They never talked when they were [8] alone.
Q. Did Mr. Okada know that you and Iva were
buying food on the black market?
A. Everybody was buying on the black market
and we talked of those things openly.
Q. So, Mr. Okada knew that you were buying
food for Iva on the black market? A. Yes.
Q. Was this food that you bought on the black
market expensive?
vs. United States of America 839
(Deposition of Unami Kido.)
A. Not necessarily too high, but it wasn't the
official price.
Q. Did the food you bought on the black market
cost more than the food you bought on your food
ration coupons? A. Yes.
Q. Did Mrs. D 'Aquino furnish you with any of
this money to buy food on the black market?
A. Yes.
Q. Did you ever see Mrs. D 'Aquino deliver any
food to prisoners of war ?
A. No, I did not see her deliver food to the
prisoners of war, but I have seen her carrying
foods.
Q. Mrs. Kido, you have testified that Mrs.
D 'Aquino received a card from the radio station
directing her to return to work?
A. Yes, when she was away.
. Q. Was this card requesting Miss Toguri to
return to work or directing her to return to work?
A. You will return to work (Shutto Seyo).
Q. Who signed this card, Mrs. Kido?
A. It was written by the American Section.
Q. Did Mrs. D 'Aquino report to work immedi-
ately after receiving this order?
A. No, she did not go immediately.
Q. Who was the man who came to your house
after receiving this card? [9]
A. I forgot the name, but a man did come.
Q. Who did he talk to?
A. First he asked me if Iva was home. Then
he talked to her.
840 Iva Ikuko Toguri D' Aquino
(Deposition of Unami Kido.)
Q. Did he talk to Mrs. D 'Aquino?
A. I called Iva downstairs but I don't know
what they talked about.
Q. Was this man from the radio station?
A. Yes, I think he was from the American Sec-
tion.
Q. Did the man tell you he was from the Amer-
ican Section of the radio station?
A. He said he was from the broadcasting sta-
tion.
Q. Did he tell you what he wanted to talk to
you about?
A. He just asked me whether or not Iva was in.
Q. Were you present when the man from the
radio station talked to Mr. and Mrs. D 'Aquino?
A. I was present when he met Iva, but do not
know what they talked about. I do not know
whether Philip was there or not.
Q. That is all.
Re-Direct Examination
By Mr. Tamba:
Q. Was this man a fat man, if you remember,
Mrs. Kido?
A. He wasn't very tall; I would say rather that
he was a small fellow.
Q. Was he a thin man?
A. Yes, he was a thin person; he wasn't fat.
Q. Did he have curly hair or straight hair, if
you remember?
vs. United States of America 841
(Deposition of Unami Kido.)
A. I did not observe that close; I just remem-
ber that he was a man and small in stature.
Q. Mrs. Kido, was Iva at home when the police
used to call two or three times a month?
A. She met them about twice and the rest of
the time I talked to the police.
Q. In other words, the rest of the time Iva
wasn't home"? A. Yes.
Q. That is all. [10]
Japan,
City of Tokyo,
American Consular Service — ss.
I do solemnly swear that I will truly and im-
partially take down in notes and faithfully tran-
scribe the testimony of Unami Kido, a witness now
to be examined. So help me God.
/s/ IRENE CULLINGTON.
Subscribed and sworn to before me this 13th day
of May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 874a; Tariff No. 38; No fee pre-
scribed.
842 Iva Ikuko Toguri D^ Aquino
Japan,
City of Tokyo,
American Consular Service — ss.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D 'Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
Tamba, counsel for the defendant Iva Ikuko Toguri
D 'Aquino, I examined Unami Kido, at my office in
Room 335, Mitsui Main Bank Building, Tokyo,
Japan, on the thirteenth day of May, A.D. 1949,
using as interpreter Nobuo Mshimori, who was by
me first duly sworn truly and impartially to inter-
pret the oath to be administered and interrogatories
to be asked of the witness out of the English into
the Japanese language, and truly and impartially to
interpret the answers of the witness thereto out
of the Japanese language into the English language ;
and that the said witness being to me personally
vs. United States of America 843
known and known to me to be the same person
named and described in the interrogatories, being
by me first sworn to testify the truth, the whole
truth, and nothing but the truth in answ^er to the
several interrogatories and cross-interrogatories in
the cause in which the aforesaid stipulation, court
order, and request for deposition issued, her evi-
dence was taken down and transcribed under my
direction by Irene CuUington, a stenographer who
was by me first duly sworn truly and impartially
to take down in notes and faithfully transcribe the
testimony of the said witness Unami Kido, and
after having been read over and interpreted to, and
corrected by her, was subscribed by her in the Jap-
anese language and a Japanese name-stamp, which
constitutes a legal signature under Japanese law,
affixed in my presence; and I further certify that
I am not counsel or kin to any of the parties to
this cause or in any manner interested in the result
thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this 19th day of
May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 939 ; Tariff No. 38 ; No fee prescribed.
[Endorsed] : Piled May 23, 1949.
844 Iva Ikuko Toguri D^ Aquino
In the Southern Division of the United States
District Court for the Northern District of
California
No. 31712 R
UNITED STATES OF AMERICA,
Plaintiff,
vs.
IVA IKUKO TOGURI D 'AQUINO,
Defendant.
DEPOSITION OF KEN MURAYAMA
Deposition of Ken Murayama, taken before me,
Thomas W. Ainsworth, Vice Consul of the United
States of America, in Mitsui Main Bank Building,
Room 335, in Tokyo, Japan, under the authority
of a certain stipulation for taking oral designations
abroad, and upon order of the United States Dis-
trict Court, made and entered March 22, 1949, in
the Matter of United States of America vs. Iva
Ikuko Toguri D 'Aquino, pending in the Southern
Division of the United States District Court, for
the Northern District of California, and at issue
between the United States of America vs. Iva
Ikuko Toguri D 'Aquino.
The plaintiff appearing by Frank J. Hennessy,
United States District Attorney ; Thomas DeWolf e,
Special Assistant to the Attorney General, and Noel
Storey, Special Assistant to the Attorney General, i
and the defendant, appearing by Wayne N. Collins \
and Theodore Tamba.
The said interrogations and answers of the wit- i
vs. Uiiited States of America 845
ness thereto were taken stenographically by Irene
Cullington and were then transcribed by her under
my direction, and the said transcription being there-
after read over correctly to said witness by me and
then signed by said witness in my presence.
It is Stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant's objections to the use of the
deposition, or any part of the deposition, by plain-
tiff, on the plaintiff's case in chief, shall be reserved
to the time of trial in this cause.
KEN MURAYAMA
of Tokyo, Japan, a translator, of lawful age, being
by me first duly sworn, deposes and says ;
Direct Examination
By Mr. Tamba :
Q. State your name, please.
A. Ken Murayama.
Q. Where do you reside?
A. In the city of Tokyo.
Q. What is your business or occupation?
A. I am doing translating work for various mo-
tion picture companies.
Q. Are you a citizen and national of Japan?
A. I am.
Q. When did you become a citizen and national
of Japan? A. In 1939.
Q. Where were you born?
A. New York City.
846 Iva Ikuko Toguri B' Aquino
(Deposition of Ken Murayama.)
Q. When? A. December 26, 1911.
Q. Did you receive your education in the United
States? A. Yes.
Q. What school?
A. High school in Washington, D. C, and gradu-
ated from [2^] George Washington University.
Q. When did you come to Japan ?
A. In July, 1933.
Q. Have you resided in Japan ever since?
A. Yes, except for trips to China and the Philip-
pines.
Q. Have you ever returned to the United
States? A. No.
Q. Do you know a person by the name of Iva
D 'Aquino, also known as Iva Toguri?
A. I have met and seen Iva Toguri while she
was employed in the Domei News Agency.
Q. When was that?
A. I can't recall for sure. It might have been
during the first year of the war.
Q. Have you ever seen her since that date?
A. No.
Q. Do you know anything of her activities
around radio stations during the years of the war?
A. No, only such things as I have read since.
Q. Do you know anything about a Zero Hour
program? A. No, I don't.
Q. Do you know a person by the name of Myrtle
Liston? A. Yes.
Q. Where did you meet Miss Liston ?
* Page numbering appearing at bottom of page of original f
Reporter's Transcript.
'\
vs. United States of America 847
(Deposition of Ken Murayama.)
A. In Manila.
Q. Under what circumstances?
A. She was broadcasting over the Manila radio
station to the Southwest Pacific.
Q. Did you or anyone else have any part in the
preparation of the script used by Myrtle Liston?
A. Yes, I wT^-ote the scripts Miss Liston broad-
cast. Mr. Uno also wrote some of the scripts. [3]
Q. What was the nature or tenor of the scripts
you wrote for Miss Liston, if you recall?
A. Those scripts were designed to create a sense
of homesickness among troops fighting in the South-
west Pacific. Their tone was one of trying to make
the soldiers recall certain good times they might
have had when they were back in the States. Usually
the scripts were along those lines.
Q. Do you recall any script being prepared by
you which referred to a short story of a girl at
home and a boy friend who was ineligible for the
Army?
Mr. DeWolfe: Objected to as incompetent, not
the best evidence.
The Court: Submitted?
Mr. Collins: Yes.
The Court: The objection will have to be sus-
tained.
(A. There were several scripts. I can't recall
the exact contents, but the general tenor was such
as you have mentioned. We had stories, short
scn])ts shall we say, of girls having dates with men
at home, while possibly their sweethearts or hus-
848 Iva Ikuko Toguri D' Aquino
(Deposition of Ken Murayama.)
bands might be fighting in the Southwest Pacific
area.)
Q. Do you recall anything about malaria, jungle
rot, and high cost of living, or scripts of that tenor ?
Mr. De Wolfe: Object to that as immaterial and
incompetent ; hearsay ; not the best evidence ; irrele-
vant.
The Court: Objection sustained.
(A. I can't give you any exact quotation re-
garding malaria or jungle rot, but I am sure some
of the scripts must have included diseases which
were prevalent in the tropical areas.)
Q. What kind of music did you play on the
program ?
A. We relied heavily on waltzes — music which
tended to be dreamy; usually old pieces.
Q. Were those old pieces introduced with any
particular phrase before being played^
A. Yes — Do you remember such and such a
piece.
Q. How was that program introduced — with any
particular piece of music *?
A. I believe the program came on with the play-
ing of ^'Auld Lang Syne."
Q. How did it end, if you remember?
A. We had some other signature number. I
think the word [4] ^^ Aloha" was in it.
Q. Was that program broadcast short wave or
locally?
A. It was not broadcast locally but only short
wave.
vs. United States of America 849
(Deposition of Ken Murayama.)
Q. Can you tell us something about the type of
voice Miss Liston had?
A. She had a very good voice from the stand-
point of use over the microphone. It was quite low
pitched, husky. The sort of voice that would carry
well and was in keeping with the general tenor of
the program itself.
Q. If she were a singer, in what category would
you class her as a singer ?
A. A torch singer.
Q. What kind of English did she use?
A. Her English was very good. I don't think
she was very well educated, but her pronunciation
was very good for a Filipino.
Q. Did you ever see her come to the station in-
toxicated before a broadcast?
A. Yes, several times.
Q. AVhat did she do with the scripts on those
occasions ?
A. She got through them all right. She did a
very good job on them.
Q. I think that is all.
Q. Do you remember what hour of the day that
program came on?
A, I can't say for certain. It might have been
5 or 5 :30.
Q. Did you ever announce the station when you
broadcast the program?
A. I think we announced it as FIRM.
Q. Do you know if the Japanese Government
850 Iva Ikuko Toguri B' Aquino
(Deposition of Ken Murayama.)
had other broadcasting stations in the Pacific, of
your own knowledge.
A. No, I don't know of my own knowledge.
Q. You don't know of one in Shanghai?
A. Yes.
Q. Were jou in China during the war? [5]
A. Yes.
Q. Was a woman on that station?
A. I was in Shanghai in the very early days of
the war, in the early part of 1942, and at that time
I recall an Australian girl who was broadcasting
over station XMHA.
Q. Do you know her name?
A. McDonald was her last name. I think her
first name was Betty.
Cross-Examination
By Mr. Storey : .
Q. How long did you know Miss Toguri ?
A. Well, I had only met her several times in
the Domei oifice. I can't say I knew her very well —
just to say '^ hello" to.
Q. Did you know Miss Toguri while she was
working at Radio Tokyo ?
A. No, not at all. May I add something there?
Q. No, I think that answered the question.
Q. Then you know nothing at all as to the work
Miss Toguri was doing at Radio Tokyo?
A. No, I do not. I did not know until the end i
of the war.
Q. Approximately when did Miss Liston start 1
broadcasting this program from Manila?
vs. United States of America 851
(Deposition of Ken Murayama.)
A. As I recall, it was either September of Oc-
tober, 1944. I believe that is right.
Q. How long did Miss Liston continue to broad-
casts
A. I believe until the end of January, 1945, or
the first days of February. I am not sure.
Q. Did Miss Liston ever refer to herself in these
broadcasts by the name of '^Ann'"?
A. I do not recall any name like that.
Q. Did Miss Liston ever refer to herself as
*^ Orphan Ann" in that program? A. No.
Q. That is all.
/s/ KEN MURAYAMA. [6]
Japan,
City of Tokyo,
American Consular Service — ss.
I do solemnly swear that I will truly and im-
partially take down in notes and faithfully tran-
scribe the testimony of Ken Murayama, a witness
now to be examined. So help me God.
/s/ IRENE CULLINGTON.
Subscribed and sworn to before me this nine-
teenth day of April, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 589a; Tariff No. 38; No fee pre-
scribed.
852 Iva Ikuko Toguri V Aquino
Japan,
City of Tokyo,
American Consular Service — ss.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D 'Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D 'Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
Tamba, Counsel for the defendant Iva Ikuko Toguri
D 'Aquino, I examined Ken Murayama, at my office
in Room 335, Mitsui Main Bank Building, Tokyo,
Japan, on the nineteenth day of April, A.D. 1949,
and that the said witness being to me personally
known and known to me to be the same person
named and described in the interrogatories, being
by me first sworn to testify the truth, the whole
truth, and nothing but the truth in answer to the
several interrogatories and cross-interrogatories in
the cause in which the aforesaid stipulation, court
order, and request for deposition issued, his evi-
vs. United States of America 853
dence was taken down and transcribed under my
direction by Irene Cullington, a stenographer who
was by me first duly sworn truly and impartially
to take down in notes and faithfully transcribe the
testimony of the said witness Ken Murayama, and
after having been read over and corrected by him
was subscribed by him in my presence ; and I further
certify that I am not counsel or kin to any of the
parties to this cause or in any manner interested
in the result thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, thig fifth day of
May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 804 ; Tariff No. 38 ; No fee prescribed.
[Endorsed] : Filed May 13, 1949.
854 Iva Ikuko Toguri D ^Aquino
[Title of District Court and Cause.]
DESIGNATION OF CONTENTS OF
RECORD ON APPEAL
The defendant (appellant) hereby designates that
the whole of the record, proceedings and evidence
be contained in the record on appeal herein, and
more particularly as foUows:
1948
Oct. 8 — Indictment.
Oct. 11 — Minute order entry on arraignment and
oral motion for bail and continuing cause
to Oct. 14 at 1:00 p.m. for hearing on
motion that defendant be admitted to bail.
Oct. 13 — Notice of Motion and Motion to be ad-
mitted to bail.
Oct. 14 — Minute order that defendant's motion for
bail be denied and providing that marshal
provide suitable place of confinement
where defendant will have full opportunity
to interview witnesses and consult with
counsel.
Oct. 27 — Demand for Bill of Particulars.
Nov. 3 — Demand for Discovery and Inspection.
Nov. 3 — Demand for Additional Bill of Particulars.
Nov. 15 — Notice and Motion to Strike.
Nov. 15 — Notice and Motion to Dismiss Indictment.
Nov. 15 — Notice and Motion for Discovery and In-
spection.
vs. United States of America 855
1948
Nov. 15 — Notice and Motion to Dismiss Indictment
on Defenses and Objections Capable of
Determination Without Trial of General
Issue.
Nov. 15 — Affidavit in Support of Motions to Dis-
miss, etc.
Nov. 15 — Notice and Motion for Bill of Particulars.
1949
Jan. 3 — Minute order that Motion for Bill of Par-
ticulars, Motion to Dismiss Indictment be
denied, and that Motion for Discovery and
Inspection be granted as to request num-
ber 7 but denied as to remaining requests,
and that Motion to Strike Indictment be
denied.
Jan. 3 — Minute order that defendant pleads *^Not
Guilty" and setting cause for trial on May
16, 1949.
Mar. 1 — Motion for Order Authorizing and Direct-
ing Issuance of Subpoenas requiring at-
tendance of witnesses in a foreign country
at the trial at expense of the Government
and for service thereof.
Mar. 14 — Minute order that motion to take certain
depositions be granted and that remaining
motions be denied.
Mar. 15 — Order Denying Seven (7) Motions and
Granting Defendant's Motion for Taking
Depositions Abroad.
856 Iva Ikuko Toguri D ^Aquino
1949
Mar. 22 — Stipulation to Taking Oral Depositions
Abroad.
Apr. 5 — Motion for Lists of Witnesses and Venire-
men.
Apr. 5 — Motion for Order Authorizing and Direct-
ing Issuance and Service of Subpoenas
Requiring Attendance of Witnesses at
Trial Herein at Government Expense.
Apr. 21 — Notice and Motion for Postponement of
Time of Trial.
Apr. 25 — Minute order authorizing issuance and
service of subpoenas and motion for list
of witnesses and veniremen be continued
to May 2, 1949, and ordering case con-
tinued from May 16, 1949, to July 5, 1949
for trial.
May 4 — Motion for Order Authorizing and Direct-
ing Issuance and Service of Subpoenas re-
quiring attendance of witnesses at trial at
expense of the Government, and Affidavit
in Support thereof.
May 18 — Order Granting Defendant's Motion for
Order Authorizing and Directing Issuance
and Service of Subpoenas of Defendant's
Witnesses at Government Expense.
May 18 — Order Denying Defendant's Motion for
List of Witnesses and Veniremen.
May 24 — Motion for Order Authorizing and Direct-
ing Issuance and Service of Subpoenas at
Government Expense.
vs. United States of America 857
1949
June 1 — Order Granting Defendant's Motion to
Subpoena Albert Kickert and Edwin Kalb-
fleish, Jr., at Government Expense.
June 16 — Notice and Motion for list of witnesses
and veniremen.
June 16 — Notice and Motion for Supplemental Or-
der authorizing additional subsistence ex-
penses to be paid defendant's counsel for
attending examination of witnesses abroad.
June 16 — Notice and Motion for Production of
Documentary Evidence.
June 20 — Order granting motion for Supplemental
Order authorizing additional subsistence
expenses to be paid by the government to
defendant's counsel for attending exami-
nation of witnesses abroad.
June 20 — Minute order granting plaintiff's motion
to quash subpoena duces tecum served on
Mr. Hennessy.
June 22 — Order requiring plaintiff to supply de-
fendant W'ith lists of witnesses and venire-
men.
June 22 — Minute order quashing subpoenas duces
tecum issued to Mr. DeWolfe, and sub-
poena No. 148.
June 22 — Minute order denying defendant's motion
to produce.
June 28 — Copy of list of witnesses and jurors.
June 29 — Amended witness list.
July 5 — Appearance of attorneys.
858 Iva Ikuko Toguri D^ Aquino
1949
Aug. 12 — Minute entry ordering oral motion for
judgment of acquittal continued to Au-
gust 13, 1949.
Aug. 13 — Minute order denying defendant's motion
for judgment of acquittal.
Aug. 13 — Motion for order for production, exami-
nation and inspection of records and
script.
Sept. 19 — Minute entries of defendant's motions to
strike certain testimony, to dismiss indict-
ment and for judgment of acquittal, and
minute orders denying the same.
Sept. 26 — Minute entry reading '"Trial resumed.
Jury instructed and retired to deliberate
upon its verdict. Ordered alternate juror
Aileen McNamara excused from further
service. It is ordered that the Marshal
furnish meals and lodging for the jurors
and 2 deputy marshals. At 11:20 p.m.
Jury retired for the night. Ordered con-
tinued to September 27, 1949, for fur-
ther trial."
Sept. 27 — Minute entry reading ''Trial resumed.
Jury requested and received certain por-
tions of transcript and certain exhibits and
retired to deliberate its verdict. At 10:15
p.m. the jury retired for the night. Or-
dered continued to September 28, 1949 for
further trial."
vs. United States of America ' 859
1949
Sept. 29 — Minute entry reading '^ Trial resumed.
Jury deliberated further upon its verdict.
After requesting and receiving certain
Volumes of testimony and further instruc-
tions and after due deliberation the Jury
returned a Verdi<3t of ^^ Guilty." The jury
was thereupon polled. Ordered Jury be
discharged from further consideration
hereof and be excused, On Motion of Mr.
Collins it is ordered that this cause be con-
tinued to October 6th for judgment.''
Sept. 29 — Special Findings of the Jury finding de-
fendant not guilty on Overt Acts 1, 2, 3,
4, 5, 7 and 8 but guilty on Overt Act No. 6.
Sept. 29— Jury Verdict.
Oct. 3 — Motion in Arrest of Judgment.
Oct. 3 — Motion for Acquittal or New Trial.
OiCt. 3— Motion for New Trial.
Oct. 5 — Supplemental Ground in Support of Mo-
tion for Acquittal or New Trial.
Oct. 6 — Minute order denying defendant's motions
for new trial, acquittal or new trial and
in arrest of judgment.
Oct. 6 — Minute entry showing defendant was called
for judgment.
Oct. 6 — Minute entry showing defendant was or-
dered sentenced and committed to the cus-
tody of the Attorney General for impris-
onment for a period of 10 years and fined
$10,000.
Formal judgment and commitment.
860 Iva Ikuko Toguri D ^Aquino
1949
Oct. 3 — Minute entry showing that there was filed
defendant's instructions covered by the
court in other instructions and that de-
fendant excepts thereto on grounds they
have not been covered.
Oct. 3 — Minute entry showing that there was filed
defendant's instructions which were re-
fused by court as not being correct state-
ments of law.
Oct. 7 — Notice and Motion of defendant for ad-
mission to bail pending appeal.
Oct. 7 — Order staying execution of sentence to and
including October 17, 1949.
Oct. 7 — Affidavit and Order for filing appeal in
forma pauperis.
Oct. 7 — Notice of Appeal.
The reporter's transcript of all evidence,
oral and documentary, which was steno-
graphically reported and was taken down
on behalf of the plaintiff and also on be-
half of the defendant, including all oral
motions made by the respective parties
and orders and rulings of Court made
thereon. All exhibits introduced in evi-
dence by either side and all exhibits dif-
fered in evidence by the defendant and
rejected and subsequently marked exhibits
for identification, excepting the following
duplications :
Government's Exhibit 1 includes the in-
vs. United States of Ainerica 861
dictment which may be omitted from the
exhibit.
Defendant's Exhibit BP contains dup-
lications of Government's Exhibits 8, 9,
10 and 11; the pages of defendant's Ex-
hibit BP which duplicate such exhibits
may be omitted.
The defendant's Exhibit UU contains
duplication of defendant's Exhibit B; de-
fendant's Exhibit B may be omitted.
All instructions given to the jury by the
Court and all instructions the defendant
requested the Court to give to the jury
which the Court refused to give to the
jury, and also the arguments of counsel to
the jury.
All depositions offered or admitted in evi-
dence.
— Order Releasing Reporter's Transcript.
— This Designation of Contents of Record
on Appeal, and stipulation and order that
original exhibits be transmitted to Appel-
late Court.
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN,
/s/ THEODORE TAMBA,
Attorneys for Defendant.
Receipt of copy attached.
[Endorsed] : Piled October 11, 1949.
862 Iva Ikuko Toguri D' Aquino
[Title of District Court and Cause.]
OEDER STAYING EXECUTION
Good cause appearing therefor, it is hereby or-
dered that the sentence and judgment imposed in
the above-entitled case on October 6, 1949, be and
the same is hereby further stayed to and including
the 3rd day of November, 1949.
Dated: October 17, 1949.
/s/ MICHAEL J. ROCHE,
U. S. District Judge.
[Endorsed] : Filed October 17, 1949.
[Title of District Court and Cause.]
ORDER RELEASING REPORTER'S
TRANSCRIPT
It is ordered that the Clerk of this Court release
to the defendant the reporter's transcript of the
evidence and proceedings had at the trial herein for
use by the defendant in connection with her appeal
to the United States Court of Appeals for the Ninth
Circuit from the « judgment heretofore entered
against her in the above-entitled cause.
Dated : October 17th, 1949.
/s/ MICHAEL J. ROCHE,
U. S. District Judge.
O.K.
/s/ TOM DEWOLFE,
Sp. Asst. to the Atty. Gen.
[Endorsed] : Filed October 17, 1949.
vs. United States of America 863
[Title of District Court and Cause.]
STIPULATION AND ORDER THAT ORIGI-
NAL PAPERS AND EXHIBITS BE
TRANSMITTED TO THE U. S. COURT OP
APPEALS FOR THE NINTH CIRCUIT
FOR USE ON APPEAL
It is stipulated between the parties hereto that
the original exhibits and papers, including those
introduced into evidence and also those marked for
identification in the trial herein, shall constitute a
part of the record on appeal herein, and that the
same shall be transmitted to the U. S. Court of
Appeals for the Ninth Circuit for consideration on
appeal herein as part of the record on appeal, in
lieu of copies thereof.
Dated: October 11, 1949.
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN,
/s/ THEODORE TAMBA,
Attorneys for Defendant.
/s/ PRANK J. HENNESSY,
/s/ TOM DEWOLF,
Attorneys for Plaintiff.
So Ordered: Oct. 17th, 1949.
/s/ MICHAEL J. ROCHE,
U. S. District Judge.
[Endorsed] : Filed October 17, 1949.
864 Iva Ikuko Toguri D^ Aquino
[Title of District Court and Cause.]
DESIGNATION OF ADDITIONAL CONTENTS
OF RECORD ON APPEAL
The defendant (appellant) hereby designates that
the following documents also be included in the
record on appeal herein, to-wit:
1) Notice of Motion and Motion for Admission
of Defendant to Bail Pending Appeal.
2) Minute Order Denying Bail.
3) Order Staying Execution of Charge Dated
Oct. 7, 1949 and like Order Dated October 17, 1949.
/s/ WAYNE M, COLLINS,
/s/ GEOROE OLSHAUSEN,
/s/ THEODORE TAMBA,
Attorneys for Defendant.
Receipt of copy attached.
[Endorsed] : Filed October 19, 1949.
vs. United States of America 865
[Title of District Court and Cause.]
CERTIFICATE OF CLERK TO
RECORD ON APPEAL
I, C. W. Calbreath, Clerk of the District Court
for the United States for the Northern District of
California, do hereby certify that the foregoing and
accompanying documents and exhibits, listed below,
are the originals filed in this Court, or true and
correct copies of orders entered on the minutes of
this Court, in the above-entitled case, and that they
constitute the Record on Appeal herein, as desig-
nated by the Appellant, to wit :
Indictment.
Minute Order of October 11, 1948 — Arraignment,
etc.
Notion of Motion and Motion to be Admitted to
Bail.
Minute Order of October 14, 1948 — Defendant's
Motion for Bail Denied, etc.
Demand for Bill of Particulars.
Demand for Discovery and Inspection.
Demand for Additional Bill of Particulars.
Notice of Motion to Strike and Motion to Strike.
Notice of Motion to Dismiss Indictment and Mo-
tion to Dismiss Indictment. — Includes Deft's Ex.
No. A (Mo. to Dismiss.)
Notice and Motion for Discovery and Inspection.
Notice and Motion to Dismiss Indictment on De-
fenses and Objections Capable of Determination
Without Trial of General Issue.
Affidavit in Support of Motions to Dismiss.
866 Iva Ikuko Toguri V Aquino
Notice and Motion for .Bill of Particulars.
Minute Order of January 3, 1949 — Motions for
Bill of Particulars, to Dismiss Indictment and to
Strike Indictment Denied — Plea of Not Guilty.
Notice and Motion for Order Authorizing and
Directing Issuance of Subpoenas, etc.
Minute Order of March 14, 1949, that Motion to
Take Certain Depositions be Granted, etc.
Order Denying Seven Motions etc.,
Stipulations to Taking Oral Designations Abroad.
Notice and Motion for Lists of Witnesses and
Veniremen.
Notice and Motion for Order Authorizing and
Directing Issuance and Service of Subpoenas, etc.
Notice and Motion for Postponement of Time of
Trial.
Minute Order of April 25, 1949— Ordered Issu-
ance of Subpoenas, Continuing Motion for List of
"Witnesses, etc.
Notice and Motion for Order Authorizing and
Directing Issuance and Service of Subpoenas, etc.
Order Granting Defendant's Motions for Order
Authorizing and Directing Issuance and Service
of Subpoenas, etc.
Order Denying Motion for Lists of Witnesses
and Veniremen.
Notice and Motion for Order Authorizing and
Directing Issuance and Service of Subpoenas, etc.
Order Granting Defendant's Motion for Order
Authorizing and Directing Issuance and Service of
Subpoenas to Albert Eickert and Edwin Kalbfleish,
Jr., etc.
vs. United States of America 867
Motion for Lists of Witnesses and Veniremen.
Motion for Supplemental Order Authorizing Ad-
ditional Subsistence Expenses, etc.
Motion for Production of Documentary Evidence.
Notice of Motion for Production of Documentary
Evidence.
Order Granting Motion for Supplemental Order
Authorizing Additional Subsistence, etc.
Minute Order of June 20, 1949 — Order Granting
Motions to Quash Subpoena Duces Tecum, for Ad-
ditional Expenses and for List of Witnesses and
Veniremen.
Order Requiring Plaintiff to Supply Defendant
with Lists of Venireman and Witnesses.
Subpoena to Tom DeWolfe.
Minute Order of June 22, 1949 — Quashing Sub-
poena Duces Tecum and Denying Defendant's Mo-
tion to Produce.
Appearance of Attorneys.
Minute Order of August 12, 1949 — Continuing
Oral Motion for Judgment of Acquittal.
Minute Order of August 13, 1949 — Denying De-
fendant's Motion for Judgment of Acquittal.
Motion for Order for Production, Examination
and Inspection of Records and Scripts.
Minute Order of September 19, 1949 — Denying
Motion to Strike Certain Testimony, To. Strike
IT. S. Exhibits Nos. 2 and 15, To Dismiss Lidict-
ment and for Acquittal.
Minute Order of September 26, 1949 — Court's
868 Iva Ikuko Toguri D^ Aquino
Instructions to the Jury, Alternate Juror Excused,
etc.
Minute Order of September 27, 1949 — Portions
of Transcript and Exhibit Requested and Delivered
to Jury, etc.
Minute Order of September 29, 1949 — Jury Ee-
quested and Received Certain Volumes of Testi-
mony, Further Instructions of the Court, Verdict
and Special Findings, etc.
Special Findings by the Jury.
Verdict.
Motion for Arrest of Judgment.
Motion for Acquittal or New Trial.
Motion for New Trial.
Points and Authorities in Support of Motion for
New Trial.
Supplemental Ground in Support of Motion
Heretofore Filed for Acquittal or for New Trial.
Supplemental Authorities on Motion for New
Trial.
Memorandum on Behalf of United States in Op-
position to Defendant's Motions for a New Trial,
Judgment of Acquittal, and in Arrest of Judgment.
Defendant's Instructions Covered by the Court
in Other Instructions.
Defendant's Instructions refused by the Court as
Not Correct Statements of the Law.
Minute Order of October 6, 1949— Denying Mo-
tion for New Trial, Denying Motion for Acquittal
or New Trial, Denying Motion in Arrest of Judg-
ment— Sentence.
Arrest of Judgment — Sentence.
vs. United States of America 869
Judgment and Commitment.
Notice of Motion for Admission of the Defendant
To Bail Pending Appeal.
Order Staying Execution.
Affidavit of Defendant re Dispensing With Pay-
ment of Fees and Costs of Printing Record on Ap-
peal.
Order Dispensing With Payment of Fees and
Costs of Printing Record on Appeal.
Notice of Appeal.
Minute Order of October 19, 1949 — Denying Mo-
tion for Bail Pending Appeal.
Designation of Contents of Record on Appeal.
Order Staying Execution.
Order Releasing Reporter's Transcript.
Stipulation and Order That Original Papers and
Exhibits Be Transmitted to the U. S. Court of
Appeals, etc.
Designation of Additional Contents of Record on
Appeal.
Reporter's Transcript for November 22, 1948 —
Motion to Dismiss, For a Bill of Particulars, To
Strike, and for Discovery and Inspection.
Reporter's Transcript for December 20, 1948 —
Hearing on Special Motions of Defendant.
Reporter's Transcript for January 3, 1949.
54 Volumes of Reporter's Transcripts.
Plaintiff's Exhibits Nos. 1 (Also Defendant's
Exhibit A) 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,
15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28,
29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42,
870 Iva Ikuho Toguri B' Aquino
43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56,
57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 79,
71 (In the Deposition of J. A. Abranches Pinto),
72, 73, 74, and 75.
Defendant's Exhibits A, (Also Plaintiff's Ex-
hibit No. 7), B, C, D, E, F, G, H, I, J, K, L, M,
N; O, P, Q, R, S, T, U, V, W, X, Y, Y-1, Z, Z-1,
AA, BB, CC, DD, EE, (in Pinto Deposition), PF
(in Pinto Deposition), GG (in Pinto Deposition),
HH, (in Pinto Deposition), II, (in Pinto Deposi-
tion), JJ (in Pinto Deposition), KK (in Pinto
Deposition), LL (in Pinto Deposition), MM, NN,
00, PP, QQ, RR, SS, TT, UU, VV, WW, XX,
YY, ZZ, BA, BC, BD, BE, BF, BG, BH, BI, BJ,
BK, BL, BM, BN, BO, BP, BQ, BR, BS, (19 Dep-
ositions) (Brown Suit — 3 pieces — accompanjdng
Deposition of Toshikatsu Kodaira), BT (23 Sub-
poenas), BIT, and BV.
In Witness Whereof, I have hereunto set my
hand and affixed the seal of said District Court this
24th day of October, A.D. 1949.
C. W. CALBREATH,
Clerk,
[Seal] /s/ M. E. VAN BUREN,
Deputy Clerk.
vs. United States of America 871
[Endorsed] : No. 12383. United States Court of
Appeals for the Ninth Circuit. Iva Ikuko Toguri
D 'Aquino, Appellant, vs. United States of America,
Appellee. Transcript of Record. Appeal from the
United States District Court for the Northern Dis-
trict of California, Southern Division.
Filed October 24, 1949.
/s/ PAUL P. O'BRIEN,
Clerk of the United States Court of Appeals for
the Ninth Circuit.
I
No. 12,383
IN THE
United States Court of Appeals
For the Ninth Circuit
IvA Ikuko Toguri d 'Aquino,
Appellant,
vs.
United States of America,
Appellee,
BRIEF FOR APPELLANT,
i
1950
Wayne M. Collins,
Mills Tower, San Francisco 4, California,
Theodore Tamba,
()8 Post Street, San Francisco 4, California,
George Olshausen,
1182 Vallejo Street, San Francisco 9. California,
Marvel Shore,
155 Hyde Street, San Francisco 2, California,
Attorneys for Appellant.
AUL. P. O'BRIEN,
CL6RK
Table of Contents
Page
Introduction 1
Jurisdiction 2
Detailed statement of facts 2
1. Defendant 's personal history 3
2. Defendant's citizenship 16
3. Japanese plan in broadcasting to Allied troops 18
4. Contents of defendant 's broadcasts 19
a. Scripts and transactions 21
b. Recollection of witnesses 23
5. Alleged confessions and admissions of defendant 31
6. Aid to Allied prisoners of war 32
7. Technical evidence 32
8. Defendant ''brought" under Army guard 33
Suminar}^ of argument 35
1. Contentions calling for discharge of defendant 35
2. Contentions calling for new trial 36
I. Contentions calling for discharge of defendant 37
A. Inasmuch as United States permitted naturaliza-
tion of its citizens to enemy citizenship during the
war, adherence-aid-comfort clause of treason stat-
ute inoperative 37
1. During recent war U. S. permitted naturaliza-
tion to opposite belligerent 38
2. Legal naturalization to enemy in wartime
makes adherence-aid-comfort clause inoperative 41
a. Adherence-aid-comfoit clause unconstitu-
tional under Fifth Amendment 42
b. In view of legalized naturalization to
enemy belligerent, adherence-aid-comfort
clause unconstitutional under Art. Ill,
sec. 3 46
ii Table of Contents
Page
3. Same results if U. S. policy was to permit
its citizens to become stateless 49
B. Defendant's year-long imprisonment in Japan
denied speedy trial — alternative objections 50
1. Facts denied speedy trial under Sixth Amend-
ment 52
2. Alternatively, defendant once in jeopardy or
case res judicata 52
3. Alternatively prosecution after known loss of
evidence violates Fifth Amendment 53
4. Summary 54 [
C. Defendant's aid to Allied war prisoners creates |
reasonable doubt as matter of law and makes evi-
dence insufficient 54
1. General rule as to sufficiency of evidence. ... 55
2. Defensive evidence need onlj^ raise reasonable [
doubt 56
3. Aid to Allied prisoners raises reasonable doubt "
as to intent 56
D. District Court without jurisdiction 57
1. Introduction 57 I
2. Defendant brought to U. S. in custody of
Army as posse eomitatus 59
3. Government cannot establish jurisdiction of
District Court by showing own violation of
10 U.S.C. 15 ..." 60
a. Authorities supporting rule 60
b. Contrary decisions inapplicable or un-
sound 62
(1) 10 U.S.C. 15 extends to matters uncon-
nected with Civil War 62
(2) Cases like Pettibone v. Nichols, 203
U.S. 192 and Mahon v. Justice, 127
U.S. 700 not in point 62
(3)-(4) 10 U.S.C. 15 applies though in-
dictment charges acts in Japan 67
Table of Contents iii
Page
^ E. Summary 72
j II. Contentions calling for new trial 72
A. Issue of duress 73
1. Defendant's background situation 73
2. Facts admitted in evidence 74
a. Duress against defendant by persons in
authority 75
b. Duress on others by persons in authority
— communicated to defendant 79
c. Duress on others by persons in authority
— not communicated to defendant 81
d. Duress on defendant by persons not in
authority 83
e. Defendant's opportunity to quit broad-
casting job 84
3. Matters excluded from evidence 87
a. b. Exclusion of duress on defendant or
on others and communicated to defend-
ant 87
c. Exclusion of evidence of terror over en-
tire Radio Tokyo staff 91
d. Exclusion of duress on others not com-
municated to defendant 91
4. Instructions given and refused 100
a. General rule of duress presented to jury 101
b. Special instraction devitalizing defend-
ant's evidence 103
5. Coercion as defense — rulings on instructions
erroneous 104
a. General law of coercion as defense 104
b. Under above law instructions given and
refused were error 109
c. Summary 116
G. Coercion as defense-rulings on evidence er-
roneous 117
a. Evidence of official duress brought home
to defendant 117
iv Table of Contents
Page
b. Evidence of duress on defendant by
private persons (threats of mob violence) 118
c. Evidence of duress on others not com-
municated to defendant 118
d. Evidence of state of terror pervading
Radio Tokyo staff 120
7. Errors prejudicial 120 !
8. Summary 121 !
B. The Geneva Convention 121 j
1. Operation of treaty as between Government |
and own citizens 122 I
2. Applicability of Geneva Convention to de- f
fendant 123 I
a. Geneva Convention applies generally to I
luiinterned civilians 124 ]
3. Applicability of Geneva Convention as be- \
tween herself and U. S. Government 126 '
4. Defendant's proposed instructions under
Geneva Convention erroneously rejected 127 {
5. Summary 129 |
C. Errors respecting Overt Act 6 129
1. Prejudicial instruction on Overt Act 6 132 j
2. Misconduct of prosecutor 134
1). Confessions of defendant 138
1. Exhibit 24 138
2. Exhibit 15 141 ;^
a. Government failed to lay preliminary I
foundation of voluntariness ■'^^^ I
b. Exhibit 15 obtained by inducements and
coercion 143
c. Exhibit 15 violates Upshaw v. U. S., 335 :||
U. S. 410 145 '
3. Exhibit 2 147
4. The oral confessions 148 \,
I
Table of Contents V
Page
a. Kramer 148
b. Keeney 150
c. Page 151
d. Penimore 152
5. Summary 152
E. Cross-examination of defendant 153
1. Erroneous rulings on evidence 153
a. Making defendant pass on truthfulness
of other witness 153
b. Improper cross-examination on Overt
Act 8 164
c. Various erroneous rulings in cross-exami-
nation of defendant 168
d. Summary 175
2. Misstatements of record 176
a. Misstatement of Kuroishi's testimony re
job application 176
b. Misstatement of defendant's testimony re
autographs 177
c. Misstatement of Cousens' testimony 177
d. Recross examination — misrepresentation
of Exhibit 9 178
e. Such distortion reversible misconduct .... 179
3. Summary 179
F. Identification as ''Tokyo Rose" 180
1. Hearsay notations on Exhibits 16-21 180
2. Exclusion of defendant's evidence 182
3. Summary 184
G. Refusal to produce defendant's witnesses from
Japan 184
H. Errors in instructions 186
1. Erroneous instructions given 186
2. Instructions erroneously refused 191
a. Proof of corpus delicti before considering
admissions 191
vi Table or Contents
Pa^e
b. Refusal to expatriate as evidence of in-
tention 192
e. Voluntariness of confessions 192
d. Denial of speedy trial 193
e. No direct evidence Japan was aided 194
f . Summary 194
I. Misconduct of prosecutor 194
1. Misconduct in argument to jury 195
a. Misuse of Exhibits 52 and 54 195 |
b. Reference to future prosecution of others 197 j
c. Distortion of Sugiyama's testimony 198 ;
d. Make example of defendant 198 j
e. Summary 199 !
2. Misconduct in taking of evidence 199 {
J. Erroneous rulings on evidence 200 !
1. Exclusion of defensive matter 200 j
a. Evidence that defendant's broadcasts j
beneficial to U. S. morale, or at least !
harmless 200
(1) Offered testimony of K. Gupta 201
(2) Exhibit BV for Identification 202
(3) Defendant's program substantially
like U. S. broadcasts 203
b. Fraud in preparation of Government's
case 205
(1) Fraudulent subpoenas to Government
witnesses 205
(2) Bribery of Government witnesses by
Brundidge 207
c. Additional proof of intent in helping
Allied war prisoners 209
d. Proof of rumors for impeachment 211
e. Proof of other broadcasts 214
f . Defendant 's citizenship 215
2. Denial of offers of proof 216
Table of Contents vii
Page
3. Errors of examination of prosecution witnesses 218
a. Limitation of Lee's cross-examination. . . . 219
b. Limitation of Henschel's cross-examina-
tion 222
c. Foundation for Moriyama's testimony. . 224
d. Other errors in Government's evidence. . 224
(1) Mitsushio 224
i (2) Ishii 224
' (3) Lee's direct examination 225
(4) Nii 225
(5) Villarin 225
(6) Hall 226
(7) Exhibit 25 226
(8) Denial of public trial 226
(9) Exhibit 75 227
(10) ^'Coniidential" exhibits on rebuttal 228
(11) Summary 230
4. Errors on examination of defense witnesses. . 230
a. Exclusion of impeaching reputation evi-
dence by Foumy Saisho 230
b. Appeals to race prejudice in cross-exami-
nation 231
c. Errors on direct examination of defend-
ant 232
d. Erroi-s on examination of miscellaneous
defense witnesses 235
(1) Ince 235
(2) Ito 235
(3) Ito 235
(4) Ito 236
(5) Pray 237
e. Errors in cross-examination of Reyes. . . , 237
III. Conclusion 242
Appendix follows page 242
Table of Authorities Cited
Cases Pages
Acheson v. Murakami, 176 F. (2d) 953 40, 83, 117, 118, 21C
Ah Fook Chang v. U. iS., 91 F. (2d) 805 142, 218 j
Alford V. U. S., 282 U.S. 687 220, 224 j
Ashcraft v. Tennessee, 327 U.S. 274 140'
Barber v. Abo, Nos. 12195-6 ; 40 ,
Bayside Fish Flour Co. v. Gentrey, 297 U.S. 422 43 |
Beck V. U. S., 33 F. (2d) 107 137, 179, App. 68
Berger v. U. S., 295 U.S. 78 137, 169, 179, 198, 238, 239 ,
Boske V. Commingore, 177 U.S. 459 229 I
Bowles V. U. S., 319 U.S. 33 116 ;
Bram v. U. S., 168 U.S. 532 140, 142, 144, 148, 150, 151 {
Bridges v. Wixon, 326 U.S. 135 195 1
Burt V. U. S., 139 F. (2d) 73 90
Carver v. U. S., 164 U.S. 694 209 I
Car:.^ V. Curtis, 44 U.S. 236 58
Casey v. U. S., 276 U.S. 413 47
Chandler v. U. S., 171 F. (2d) 921
61, 62, 63, 65, 67, 68, 70, 71, 115, 201
Choctaw Nation v. U. S., 318 U.S. 423 123 ,
Citizens Protective League v. Clark, 155 F. (2d) 290 124 !
Cook V. Hart, 146 U.S. 183 64
Cramer v. U. S., 325 U.S. 1 56, 106 ,
Curley v. U. S., 160 F. (2d) 229 55 i
Dalton V. People, 189 P. 37 171 |
Davis V. U. S., 160 U.S. 469 56 i
Davis V. U. S., 247 F. 394 227
Denny v. U. S., 151 F. (2d) 828 193
Dooley v. U. S., 182 U.S. 222 67
Driskill v. U. S., 24 F. (2d) 525 84
Ehrhardt v. Stevenson, 128 Mo. App. 476, 106 S.W. 1118. . 217
Eureka Hill M. Co. v. Bullion B. & C. M. Co., 32 Utah 236,
90 P. 157 220
Ex parte Endo, 323 U.S. 283 83
Table of Authorities Cited ix
Pag-cs
Ex parte Lamar, 274 F. 160 66
Ex parte Sackett, 74 F. (2d) 922 229
Falgout V. U. S., 279 F. 513 56
Fid. & Cas. Co. V. Weise, 182 111. 496, 55 N.E. 540 217
Fid. & Cas. Co. v. Weise, 80 111. App. 499 217
Fink V. O'Neil, 106 U.S. 272 58
Eraser v. U. S., 145 F. (2d) 139 170
Gardner v. Babcock, 70 U.S. 240 133
Gillars v. U. S., 182 F. (2d) 962 61, 62, 67, 120, 184, 185, 227
Giugni V. U. S., 127 F. (2d) 786 109, 110
Goesaert v. Cleary, 335 U.S. 464 43
Gray v. U. S., 9 F. (2d) 337 142
Harris v. Mun. Court, 209 Cal. 55 50
Harris v. So. Carolina, 338 U.S. 68 222
Hartzell v. U. S., 72 F. (2d) 569 142
Hawley v. U. S., 133 F. (2d) 966 90
Healy v. Wellesley & B. St. Ry. Co., 176 Mass. 440, 57
N.E. 703 220
Hicks V. Hiatt, 64 F.S. 238 202, 205, 208
Hirabayashi v. U. S., 320 U.S. 81 83
Holloway v. U. S., 148 F. (2d) 665 56
Hopt V. Utah, 110 U.S. 574 142
Hunter v. U. S., 62 F. (2d) 217 114
Inglis V. Sailors Snug Harbor, 28 U.S. 99 39
In re Alpine, 203 Cal. 731 50
In re Bcrgerow, 133 Cal. 349 50
In re Johnson, 167 U.S. 120 63
In re Yamashita, 327 U.S. 1 123
Ishikawa v. Acheson, 85 F.S. 1 83
Johnson v. Eisentrager, 94 L. Ed. Adv. Ops. 814
58, 74, App. 10, 116, 123, 124
Johnson v. U. S., 318 U.S. 189 119
Juando v. Taylor, Fed. Cas. No. 7558 39
Kansas City So. Ry. v. Road Impr. Dist., 256 U.S. 658 43
Kasinowitz v. U. S., 181 F. (2d) 632. 88, 115, 117
Kawakita v. U.S., No. 12061 102, 124
X Table of Authorities Cited
Pages
Keefe v. State, 50 Ariz. 293, 72 P. (2d) 425 233
Kelley v. Andrews, 71 N.W. 251 171
Ker V. Illinois, 119 U.S. 436 64
Korematsu v. U. S., 323 U.S. 214 83
Lee V. Mississippi, 332 U.S. 742 130
Lisenba v. California, 314 U.S. 219 119
Litkofsky v. U. S., 9 P. (2d) 877 142 *
Little V. U. S., 73 P. (2d) 861 84, 218
Little York G. W. & W. Co. v. Keyes, 96 U.S. 199 57, 58
Lombard v. Mayberry, 24 Neb. 674, 40 N.W. 271 167 |
Lustig V. U.S., 338 U.S. 74 144 j
Mahon v. Justice, 127 U.S. 700 61, 62, 64
Mangum v. U. S., 289 P. 213 142 :
Martin v. Canal Zone, 81 P. (2d) 913 114
Masonic Cemetery v. Gamage, 38 P. (2d) 950 46 I
Maxwell v. Habel, 92 111. App. 510 217
McCool V. U. S., 263 P. 55 56
McDowell V. U. S., 74 P. 403 154
McGrath v. Abo, Nos. 12251-2 40
McMahon v. Hunter, 150 P. (2d) 498 65
McNabb v. U. S., 318 U.S. 332
60, 61, 62, 66, 67, 72, 138, 139, 140, 147, 152
Meeks v. U. S., 163 P. (2d) 598 218
Miller v. The Resolution, 2 U.S. 1 107
Minker v. U.S., 85 P. (2d) 425 137
Minner v. U. S., 57 P. (2d) 506 114
Mooney v. Holohan, 294 U.S. 103 53
Morei v. U. S., 127 P. (2d) 827 56
Morrow v. U. S., 11 P. (2d) 256 241
O'Shaughnessy v. U. S., 17 P. (2d) 225 114
Overland Constr. Co. v. Snyder, 70 P. (2d) 338 233
Parlton v. U. S., 75 P. (2d) 772 218
Patterson v. U. S., 222 P. 599 188
People V. Bus-ter, 53 Cal. 612 134
People V. Jones, 24 Cal. (2d) 601, 150 P. (2d) 801 151
People V. Keel, 91 Cal. App. 599 131
People V. Sanchez, 35 A.C. 565, 219 P. (2d) 9 137
People V. Sarrazzawski, 27 Cal. (2d) 7, 161 P. (2d) 934... 218
Table OF Authorities Cited xi
Pages
People V. Stevenson, 103 Cal. App. 82, 284 P. 487 218, App. 82
People V. Strong, 30 Cal. 151 134
Pettibone v. Nichols, 203 U.S. 192 61, 62, 63
Pierce v. U. S., 86 P. (2d) 949 137
Prevost V. U. S., 149 F. (2d) 747 181
Reavis v. U. S., 93 F. (2d) 307 56
Reilly v. Pinkus, 94 L. Ed. Adv. Ops. 79 220
Respublica v. McCarty, 2 U.S. 86 108, 109, 115
Rex V. Vine St. Police Station (1916), 1 K.B. 268 124
^an Antonio Transit Co. v. McCurry, 212 S.W. (2d) 645. .213, 214
Sarkisian v. U. S., 3 F. (2d) 599 90
Sawyer v. U. S., 27 F. (2d) 569 231
=?chwartz v. U. S., 160 F. (2d) 718 119
3cripps-Howard Radio v. F.C.C., 316 U.S. 4 71
thanks v. Dupont, 28 U.S. 242 39
Shannon v. U. S., 76 F. (2d) 490 88, 108, 113
Sheehan v. Huft', 142 F. (2d) 81 67
Sims V. Rives, 84 F. (2d) 871 42
Smith V. U. S., 173 F. (2d) 181 119
Spitzer v. Meyer, 198 111. App. 550 217
Stamphill v. Johnson, 136 F. (2d) 291 67
Standard Ace. Ins. Co. v. Heatfield, 141 F. (2d) 648 233
State V. Bradley, 134 Conn. 102, 55 Atl. (2d) 114 154
State V. Crowder, 119 Wash. 450, 205 P. 850 167, App. 47
State V. Hall, 20 Mo. App. 397 167
State V. Harris, 64 S.AV. (2d) 256 220
State V. Ir^vin, 17 S. Dak. 380, 97 N.W. 7 217
State V. Schleifer, 102 Conn. 708, 130 Atl. 184 154
State V. Truskett, 85 Kan. 804, 118 Pac. 1047 134
Steffen v. S.W. Bell Tel. Co., 56 S.W. (2d) 47 220
Sunderland v. U. S., 19 F. (2d) 202 223, 224
Swafford v. U. S., 25 F. (2d) 581 231
rakeguma v. U. S., 156 F. (2d) 437 83
ralbot V. Johnson, 3 U.S. 133 38
raliaferro v. U. S., 47 F. (2d) 699 137, 198
ranksley v. U. S., 145 F. (2d) 58 227
remple v. Duran, 121 S.W. 253 154
rhe Silver Palm, 94 F. (2d) 754 202
xii Table of Authorities Cited
Pages
Thomas v. D. C, 90 F. (2d) 424 217
Thomas v. U. S., 151 F. (2d) 183 188
Tucker v. U. S., 5 F. (2d) 818 166
Turk V. U. S, 20 F. (2d) 129 197
Turner v. Pennsylvania, 338 U.S. 62 222
Upshaw V. U. S., 335 U.S. 410
60, 61, 66, 67, 138, 139, 140, 141, 146, 152
U. S. V. Andolscheek, 142 F. (2d) 503 229
U. S. V. Beekman, 155 F. (2d) 580 229
U. S. V. Bowman, 260 U.S. 94 68, 69 ;
U. S. V. Brotherhood of Carpenters, 330 U.S. 395 84
U. S. V. C.I.O., 335 U.S 106 229
U. S. V. Cooper, Fed. Cas. No 14864 151
U. S. V. Flint, Fed. Cas. No. 15121 213
U. S. V. Gillies, Fed. Cas. No. 15206 39
U. S. V. Greiner, Fed. Cas. No. 15262 108, App. 18
U. S. V. Haupt, 136 F. (2d) 661 139, 140
U. S. V. Hudson, 11 U.S. 32 57
U. S. V. Johnson, 323 U.S. 273 58, 67, 72
U. S. V. Kobli, 172 F. 919 227
U. S. V. Krulewitch, 145 F. (2d) 76 230
U. S. V. Kuwabara, 56 F.S. 716 83
U. S. V. Marcus, 166 F. (2d) 497 56
U. S. V. McWilliams, 163 F. (2d) 695 52
U. S. V. Miller, 307 U.S. 174 47
U. S. V. Mitchell, 271 U.S. 9 120
U. S. V. Mitchell, 322 U.S. 65 61
U. S. V. Nettl, 121 F. (2d) 927 137
U. S. V. Palese, 133 F. (2d) 600 23
U. S. V. Ragen, 180 F. (2d) 321 229
U. S. V. Throckmorton, 98 U.S. 61 213
U. S. V. Unverzagt, 299 F. 1015 66
U. S. V. Vigol, 2 U.S. 346 108
U. S. V. Yount, 267 F. 861 43
U. S. ex rel. Schleuter v. Watkins, 67 F.S. 556 229
U. S. ex rel. Schleuter v. Watkins, 158 F. (2d) 853 229
U. S. ex rel. Voight v. Toombs, 67 F. (2d) 744 65
Van Beek v. Sabine Towing Co., 300 U.S. 342 127, App. 18
Table of Authorities Cited xiii
Pages
W. L. Faiix Grain Co. v. U. S, 68 Ct. CI. 441 202
VVatts V. Indiana, 338 U.S. 49 222
^eare v. U. S., 1 F. (2d) 617 187
WTebster v. Fall, 266 U.S. 507 120
^eeks V. U. S., 232 U.S. 383 60
Weightman v. Corp. of Washington, 66 U.S. 39 133
Weiler v. U. S., 323 U.S. 606 84
^Vesley v. State, 37 Miss. 327, 75 Am. Dec. 62 133
W^hitney v. Zerbst, 62 F. (2d) 970 66
^Villiam C. Barry Inc. v. Baker, 82 F. (2d) 79 233
tV^illiams v. State, 17 S.W. (2d) 56 154
W-illiams v. U.S., 93 F. (2d) 685 114
Wilson V. U. S., 162 U.S. 613 142, 193
Wilson V. U. S., 4 F. (2d) 888 153, 167
fu Cong Eng v. Trinidad, 271 U.S. 500 42
Statutes
:5^eneva Convention, 47 U.S. Stats, at L. 2021
36, 121, 122, 123, 124, 126, 127, 128, 129
Elule Crim. Proc. 18 65
Elule Crim. Proc. 26 90
5 U.S.C. 22 228, 229
8 U.S.C. 101 ff 40
8 U.S.C. 801 (i) 40, 46
10 U.S.C. 15 36, 58, 59, 60, 62, 67, 68, 69, 70, 71, 72
10 U.S.C. 1542 139
18 U.S.C. 1 1, 42, 43, 45, 46, 68, 70, 126, 127
18 U.S.C. 582 48
18 U.S.C. 2381 42
18 U.S.C. 3005 185, 186
18 U.S.C. 3183 70
18 U.S.C. 3193 69
18 U.S.C. 3238 57, 58, 65, 66, 67, 71
xiv Table of Authorities Cited
Pa^es
18 U.S.C. 3282 48
18 U.S.C. ch. 211 65
28 U.S.C. 1291 2
28 U.S.C. 1294 (1) 2
28 U.S.C. 1733 b 181
50 U.S.C. 21 ff 125
50 U.S.C. ch. 3 A Section 24 (3) (a) (b) 47
U. S. Constitution:
Amendment V 36, 42, 43, 54
Amendment VI 35, 50, 52, 54, 184, 185, 186, 227
Article III, Section 3 42, 44, 46, 48, 49
Article VI, cl. 2 122, 128
15 U. S. Stats, at L. 223 39
31 U. S. Stats, at L. 330 62
34 U. S. Stats, at L. 1228, Act of Mar. 7, 1907 39
54 U. S. Stats, at L. 1137, Act Oct. 4, 1940 40
Texts
53 Am. Jur. 478 133
64 C. J. 123 217
70 C. J. 464 171
38 Cyc. 1330 217
7 Cyclopedia Fed. Proc. (2d Ed.), Section 3375 133
East's Pleas of the Crown (1806) 106, App. 16, 110, 111, 116
Foster 's Crown Cases (1776) 105, App. 15, 111
Hale^s Pleas of the Crown (1778) 105
1 Hawkins' Pleas of the Crown (1795) 106
Kelyng's Crown Cases 105
2 Kent 's Commentaries Lect. XXV 38
2 Moore on Facts 212, 213
2 Wharton's Criminal Evidence (11th Ed.), Section 601.. 151
Table of Authorities Cited xv
Pages
2 Wigmore on Evidence (3d ed.), Section 278. .205, App. 80, 208
3 Wigmore on Evidence (3d ed.) :
Section 690 208
Section 860 142
Section 861 193
Section 884 208
Section 940 223
Section 950 223
Section 1040 219
5 Wigmore on Evidence (3d ed.), Section 1615 231
6 Wigmore on Evidence (3d ed.). Section 1745 233
8 Wigmore on Evidence (3d ed.) :
Section 2340 170
Section 2378 a 230
No. 12,383
IN THE
United States Court of Appeals
For the Ninth Circuit
IvA Ikuko Toguri d 'Aquino,
Appellant,
vs.
United States of America,
Appellee*
BRIEF FOR APPELLANT.
The appellant was defendant in the United States Dis-
trict Court for the Northern District of California, South-
ern Division, on a charge of treason. (18 U.S.C. 1.)
Parts of the proceedings in the case have been printed
and parts brought up to this Court typewritten. Each has
an independent page numbering, beginning at page 1.
We shall designate the pages of the printed parts as
'*R. V etc. Since there are 54 typewritten volumes, refer-
ences thereto will be both by the Roman numeral of the
volume followed by the page and line — e.g., I-l :1. The
two volumes of argument, again have their own page
numbering, and will be designated as I Arg. and IT Arg.
The clerk's transcript, motions before and after trial, and
the contents of depositions read by defendant are printed;
the testimony of witnesses given in Court and the argu-j
ments are typewritten. Exhibits have been brought up as \
originals, or by photostats.
The indictment was returned October 8, 1948. (R. 7.)
It rested partly on perjured evidence. (See infra, p. 207-8.)
It charged defendant, as an American citizen, with adher-
ing to the enemy, giving aid and comfort by preparing;
scripts and broadcasting over the Japanese radio during
the period November 1, 1943-August 13, 1945. (R. 2, 3.) j
Eight overt acts were charged. (R. 2, 5-6.) The juryj
returned special findings, finding the defendant guilty onj
Overt Act No. 6, and not guilty on all the others. (R. |
258-60.) The district judge sentenced defendant to tenj
years in prison and a $10,000 fine. (R. 327.)
JURISDICTION.
For reasons to be stated hereafter, defendant denies
that the District Court of the Northern District of Cali-j
fornia. Southern Division, or any United States District!
Court, had jurisdiction either to try her or to sentence i
her. j
The United States Court of Appeals for the Ninth Cir- 1
cuit has jurisdiction over the appeal under 28 U.S.C. 1291,
1294(1).
DETAILED STATEMENT OF FACTS.
In conformity to the rules governing evidence on appeal,
we take our facts first from the prosecution ^s evidence.
The defendant's evidence we use only where it is uncon-
tradicted and unimpeached, or where conflicts serve to
highlight the probably prejudicial effect of errors. Names
of Oovernment witnesses will be italicized.
1. DEFENDANT'S PERSONAL HISTORY.
The defendant, Iva Ikuko d 'Aquino (nee Toguri), was
born in Los Angeles, California, on July 4, 1916. (Govt.
Exh. 3 — birth certificate — 1-58.) She was of Japanese
lineage : Govt. Exh. 3, also photographs on passport appli-
cations, and otherwise. (Govt. Exh. 4, 5; 1-71, 76; Govt.
Exh. 73, XLVII-5294; Def. Exh. SS, XLIV-4919; Def. Exh.
BP, L-5522.) Tier father and mother, both lawful residents
of the United States, were born in Japan. (Govt. Exh. 4, 5;
Def. P]xh. BP, ) She was educated in California
public schools, and graduated from the University of
California at Los Angeles. (Def., XLIV-4912:15-4914:1.)
The prosecution introduced evidence that in 1941 while
she was attending the university she had talked about
stud>^ng medicine in Japan. {Steggal, XXII-2344-5.) She
denied any conversation or intention referring particularly
to this, stating that there was only general talk about
different countries to which the students might like to go
for further study. (Def. XLVII-5258-60, especially 5260:
18-21.)
She resided in this country until July 5, 1941, when she
sailed for Japan (Def. XL1V-4912:13-14) as a family
representative, in lieu of her bed-ridden mother, to visit
her maternal aunt who was reported to be on the verge of
death. (Def. XLIV-491 7:14-24.) Her father applied to
the State Department for a passport to enable her to make
the trip. (Def. XLIV-4918.) However, she never at any
time received a passport. Because the matter was urgent
she then presented an application to the U. S. Immigration
and Naturalization Service at Los Angeles for a certificate
in lieu of a passport to enable her to make the trip. She
received from that office a ^ * Certificate of Identification ''.
(Def. XLIV-4918 :8-17; Exh. SS, XLIV-4919 is the cer-
tificate.) This enabled her to sail on the Arabia Maru for
Japan where she arrived on July 24, 1941. (Def. XLIV-
4920.)
On arrival at Yokohama she applied for and received
a resident permit which was valid for a six months period.
(Def. XLIV-4921.) She had only $300 in her possession
and this was intended to be reserved for her return
passage. (Def. XLIV-4921.)
Shortly after her arrival she filed a written verified
application for a U. S. passport in the office of the U. S.
Consulate in Tokyo in August, 1941. (Def. XLIV-4922:9-
14.) No such passport was ever issued to her. (See Def.
TT, XLIV-4923, letter to defendant from the U. S. Consul
at Tokyo, December 1, 1941, the last communication to her
from the State Department before the war.)
On the afternoon of December 1, 1941, she received a
cablegram from her father instructing her to board the
Tatsuta Maru which was scheduled to sail for the United
States on December 2nd. (Def. XLIV-4926-7.) She applied
immediately to the NYK Line for passage and was in-
formed that she had to have a passport or identification
from the U. S. Consulate and a letter from the school she
had attended showing she had not been employed in
Japan before she could book passage. (Def. XLIV-4927.)
6
She obtained and presented an identification document and
a letter from the school principal to the NYK Line and
was informed that she had then to get clearance from
the Finance Ministry. She applied for that clearance but
it was refused. (Def. XLIV-4928-9.) As a result she was
stranded in a hostile Japan, was ignorant of its language
and without an income from any source.
On September 13, 1916, when she was two months nine
days of age she ,^vas registered in the koseki of her
father's ancestral line in Jai)an. On January 13, 1932, her
father had that registration cancelled. (Def. XLIX-5500.)
By reason of her own choice and her father's apparent
aversion to Japanese the defendant had been reared to
associate with Caucasians among whom they lived rather
than with persons of Japanese descent. Her parents spoke
P]nglish. (4916.) She was not compelled to study the Japa-
nese language during her formative years. In consequence,
she was unable to speak, read or understand the Japanese
language when she arrived in Japan. (Def. XLIV-4914-5.)
Thereafter she acquired a very limited knowledge of the
language by attending a Japanese language school in
Japan for a short time before and after December 7, 1941.
(Matsumiya, R. 795-7; Def. XLIV-4930:13-4931 :2.)
Learning from an article in English in the Mainichi, an
Osaka newspaper published in English, that the Swiss
Legation would accept applications for the evacuation of
strandees from Japan she applied in February, 1942, for
evacuation on the first of such evacuation ships. (Govt.
Exh. 7, 1-80; Def. XLIV-4935-4937.) To be eligible for
passage she asked the second secretary of the Legation to
verify her U. S. citizenship by cabling Washington and
asking for an answer. The answer from our State De-
partment was a denial of her U. S. citizenship, its dec-
laration being that her ''citizenship was in doubt". (Def.
XLIV-4937 :21 -23. ) As the result she was refused passage.
She boarded and lodged at her uncle's house for 50 yen
per month until June, 1942 (Def. XLIV-4940; 4941; 4951;
XLV-4956-7), when her funds ran out. Harassed by police
and kempeitai visits concerning the defendant and the
insistence of neighbors her uncle asked her to leave his
home. (Def. XLV-4957.) Thereafter, she lodged and
boarded where she could and was hard put to earn suffi-
cient money to pay her way. (Def. XLIV-4951-3; XLV-
4956-7; 4965.) Because she w^as destitute, friendless, an
alien enemy to Japan in a hostile Japan, under constant
police and kempeitai surveillance and suspicion, unfamiliar
with the Japanese language and forced out of her uncle's
home she had to obtain emplo>inent to keep body and soul
alive. Because she was acquainted only with English she
was able to obtain only part time employment. She became
a typist at Matsumiya's school for a pittance of 20 yen
per month and gave piano lessons to his children for 2i/^
yen per month, this income being applied on her tuition.
(Def. XLIV-4946-7; 4941.)
She faced starvation from June, 1942, to September,
1942, because the Japanese authorities denied her a ration
card as a means of pressure upon her to become a Japa-
nese citizen. (Def. XLV-4960.) Faced with starvation for
want of employment, denied her because she was an
American citizen and lacking knowledge of the Japanese
language, she walked the streets for about three months in
an effort to get a job (Def. XLV-4968) to keep body and
soul together. She obtained work as a typist-monitor for
the Domei News Agency in June, 1942, where she remained
until December, 1943. (Def. XLIV-4942-44.) Domei was a
source from which she obtained shortwave news from the
United States which she relayed to Allied POW's at Radio
Tokyo and Bunka Prison to bolster up their morale. She
started this work at 110 yen per month less a 25 per cent
tax. (Def. XLIV-4947-8.)
Thereafter, in September, 1942, she received a notice
from the Swiss Legation announcing the prospective
sailing of a second evacuation ship, (Def. XLIV-4938.)
She went to the Legation to ascertain the possibility of
boarding that ship and applied for passage to the United
States. (Def. XLIV-4939.) She was informed that she
needed $425 as fare. (Def. XLTV-4939.) Her funds then
were exhausted. She had '^not one dollar" to her name
and, in consequence, she later canceled that application
for want of passage money. (Def. XLIV-4939-4941 and
Govt. Exh. 7, 1-80, and Ito, XL-4541.) At this time her
family were detained in an American concentration camp
at Gila River, euphemistically termed a War Relocation
Center. She couldnH get in touch with them and didn't
know where to communicate with them to learn whether
they could pay her fare. (Def. XLIV-4939-4942.) (Atten-
tion is directed to the fact that her parents were barred
under the provisions of the Trading With the Enemy Act
from advancing any such fare and that, by reason of their
detention and their consequent loss of their own resources
and control over the same, they would have been prevented
from i)aying her fare had they otherwise been authorized
so to do.) Her mother died in one of those Centers. (Def.
XLIV- 4910.) Chiyeko Ito, a witness who had been sub-
8
poenaed by both sides but who was called by the defense,
testified to a supposed conversation in which she and the
defendant expressed the belief of themselves being put
into an internment camp if they returned to the United
States. (Ito, XL-4538:5-9; 4541:3-4542:1.) The defendant
testified that the only factors which induced her to cancel
the application were her utter lack of funds and conse-
quent inability to obtain the fare. (Def. XLIV, 4939-4941.)
The cutting of communication between Japan and the
United States (Def. XLIV-4942) was an additional factor
which prevented her from communicating with her family
had she been able to learn where they had been incar-
cerated.
The question is probably academic because a United
States Consular memorandum dated April 4, 1942, is in
evidence reciting that the American authorities considered
defendant's citizenship ''not proved'' and that they in-
tended to do nothing for her during the continuance of the
war. (Def. Ex. A, 11-116.) Because she was trapped in
Japan by the onset of war and the United States author-
ities would not lift a hand for her to return to the United
States she would have had to remain isolated in hostile
Japan for the duration of the war even if she had not
cancelled her last application for evacuation.
In June, 1943, she was suffering from malnutrition, was
afflicted with beri-beri, sinus infection and otitis media and
was given hospital treatment by Dr. K. W. Amano.
(Amano, R. 818-9; Def. XLV-4969.) He found her attitude
and allegiance during the war to be ''entirely definitely
American" and testified that she mentioned that "the
Japanese would be defeated". (Amano, R. 819.)
9
To save herself from trouble arising out of disputes
with the employees of Domei in whose presence she made
pro-American statements she resigned the Domei job in
the latter part of 1943. (Def. XLV-4973.4975 ; d 'Aquino
XLIII-4749-4752.)
In debt for borrowings necessitated to enable her to
live she asked Kuroishi if he knew of any part time jobs
open for a person who could not speak or write Japanese.
Learning from an ad in the Nippon Times, published in
English, that Radio Tokyo would conduct tests for typist
jobs in English she applied to Radio Tokyo, took the com-
petitive examination and in August 23, 1943, became a
part time typist in the business office of Radio Tokyo.
(Def. XLV-4969-71; Cousens XXVIII-3157:8-14.) (Kuro-
ishi said he interceded with Radio Tokyo to help her get
this job. Kuroishi, XXI-2284 :5-7 ; 2285:18-21.) The head
of this business office was Shigechika Takano. (Def. XLV-
4972.) She started this work at 100 yen per month less
25-26% tax deductions so she received a net of 78-80 yen
which was reduced to 64-65 yen. (Def. XLV-4972.) The
salary was raised to ISO yen less deductions (Def. XLIX-
5405-6), which yielded her a net of only 130 yen. (Def.
XLIX-5516, and Exh. 13, 11-208.) After she had this typ-
ing job events took a turn which eventually brought her
into the toils of the present prosecution.
In January, 1944, in response to an ad in the Nippon
Times, a newspaper published in English, she aj)plied to
the Danish Minister, the Hon. Lars Tillitse, for a typist
Job in the Danish Legation in Tokyo and was employed
there from January 6, 1944, until that Legation was
closed out when Denmark severed diplomatic relations
10
with Japan in May, 1945. (Tillitse, E. 807; Def. XLW-
4948-4950.) While there employed she obtained news she
relayed to the Allied POW's and delivered food, medicine
and tobacco to them. (Def. XLV-5044-6; 5048; 5055-6.)
Her salary started at 150 yen and later was raised to 160
yen per month. (Tillitse, R. 807.) In the summer of 1943, the
Japanese had three captive Allied war prisoners at Radio
Tokyo whom they had ordered to broadcast. (Tsuneishi,
head of the Japanese military broadcasting system, ad-
mitted the orders, but denied that he personally threat-
ened them with death (V-359-60; V-323-4; VII-460) for
disobedience. The three prisoners testified that they were
threatened with death. Major Charles E. Cousens (Au-
stralian), XXVIII-3122:9-18, 3179:22-25, 3180:23-3181:3;
XXIX-3235:21-3236:8; Captain Wallace E. Ince (Ameri-
can), XXXI-3463 :6-ll ; 3521:9-3522:8; Lt. Norman Reyes
( Filipino ) , XXXII-3579 :3-8 ; 3598 :18-19 ; 3665 :18-21. )
Their program had been expanded once and in November,
1943, was scheduled to be expanded again, so as to in-
clude a woman's voice. (See infra.) Since March, 1943,
Reyes had been broadcasting a 20 minute program of
music, beamed to the American troops, and called the
'^Zero Hour". (MitsusUo, XI-1052 :17-20, 1054:1-10, 1055:
24-1056:5, 1061:12-16.)
In August of the same year (1943) this w^as expanded
into a 60-minute program, including prisoner-of-war mes-
sages, music and news commentaries. {Mitsushio, XI-1061:
17-21, 1062:5-11, 1073:13-1074:1, 1086:7-14, 1087:20-1088:2.)
From August 23, 1943, to November 10, 1943, the defend-
ant was employed as a part time typist in the business
office of Radio Tokyo. She was under the supervision of
11
Shigechika Takano, the head of that department. On
August 24, 1943, she saw the prisoners of war, Cousens,
and Ince, and Reyes, brought into the office where she was
talking to Ruth Hayakawa. (XLV-4976-7.) The defendant
expressed sympathy for them (XLV-4978) and the next
day Miss Hayakawa introduced her to Cousens and Ince.
Thereafter she talked to them whenever the opportunity
arose. Cousens related the history of their capture and
how they came to be in Radio Tokyo. (Def. XLV-4979-
4982; Cousens, XXVIII-3164, re informing her that the
Japanese were uncivilized and *'you did what you were
told or you died" (3165) and reciting eye witness account
of the torture and murder of an Australian POW by the
Japanese (3167) at Singapore.) She started to relay short-
wave news to them of Allied successes, took them peri-
odicals and started to deliver food to them.
In November, 1943, the Japanese General Staff decided
to expand the *^Zero Hour" still further by putting a
female voice on it. {Mitsushio, XI-1089:4-8.) Hereupon
Major Cousens, the Australian prisoner of war, talked the
Japanese authorities into putting the defendant on the
Zero Hour. {Mitsushio, XI-1091 :16-21 ; XII-1099 :8-1100 :6 ;
Cousens, XXVIII-3182:12-3183:14.) Mitsushio, the civilian
head of the Zero Hour (Tsuneishi, IV-278:8-13), took the
matter up with his superior, Takano (Mitsushio, XI-1092:
7-16), who was head of the Japanese overseas broadcast-
ing bureau. Takano informed Mitsushio that he was loan-
ing the defendant to the broadcasting department.
(Mitsushio, XII-1096:5-17.)
On November 10 or 11, 1943, while she was typing in
the business office George Nakamoto, alias Mitsushio,
12
entered that office and told her that ''army orders had
come through'' that she "was to be taken down to be put
on a new entertainment program put on by the prisoners
of war, that "it was by the prisoners of war who was
putting on this entertainment program", that she "had
been chosen and subsequently ordered by the army'^ and
that she would be taken down for a voice test. (Def.
XLV-4983-4.) She protested and he said (Def. XLV-
4983:24-4984:1.)
"It is not what you want. Army orders came
through and army orders are army orders. If you
want details, go see your boss".
Thereafter, she went to see Takano who said to her
(Def. XLV-4985 :4-7 ; 12-13, 16-17; 19-21):
"I meant to tell you when you first came in that we
had received army orders that you had been selected
by the prisoners of war to be put on this new enter-
tainment program."
"As far as he knew, he was my direct boss, that
army orders had ordered me down for the voice test
* * * and you took this job as an alien with Eadio
Tokyo, didn't you?"
^^You have no choice. You are living in a militaris-
tic country. You take army orders. Yo7i know what
the consequences are. I don't have to tell you that.''
Thereafter, she was taken down to Major Cousens for
a voice test. She told him Takano had told her that
"army orders had been sent down" and that she "was
ordered to take a voice test for this new prisoner of war
program". (Def. XLV-4990; Cousens XXVIII-3184.) She
13
protested to him (Cousens XXVIII-3184-5) but he said
(Def . XLV-4987 :1 ; 4987 :21 -4988 :4) :
^^ Don't worry about that. We chose you for a
specific reason."
Cousens also stated to her tliat the program was
'' completely entertainment". (Def. XLV-4999; Cousens
XXVIII-3187). His purpose was to burlesque the pro-
gram. (Cousens XXVIII-3188.)
Three days later she asked Cousens why she had been
ordered on the program. He stated that he had selected
her after discussion with the other prisoners because he
felt they could trust her. (Def. XLV-4992.) She learned
the prisoners were under threat of being executed if they
disobeyed Japanese army orders. (Def. XLV-4994).
From the time she first was forced to appear on the
Zero Hour program and constantly thereafter Cousens
reminded the defendant that she was *^ never to disobey
the Japanese army militarists, because they were brutal
and sly and cunning". He later told her "never say any-
thing against the Japanese army officers or army orders"
as POW's at Bunka had been taken aw^ay for refusal to
obey army orders and Kalbfleish had been taken away to
be executed for disobedience. (Def. XLVI-5079.) She also
learned that Capt. I nee had been sclieduled for execu-
tion for disobedience to army orders and that Cousens had
intervened and saved his life. (Def. XLVI-5080.) Huga
also informed her of the consequence of disobedience to
such orders and she feared like consequences. (Def. XLVI-
5080.)
"You have been selected by the ])risoners of war
for a specific reason."
14
*^DonH let the fact that you do not know what kind
of a voice you have or w^hether you have any radio
experience or not have anything to hamper you in
any way. I am going to write all the scripts. I have
complete control of the program. Can you state here
that you will become one of our men — one of our men
— one of the soldiers to fight from this end of the
liner'
That testimony was fully corroborated by Cousens.
(Cousens XXVIII.3186-7.)
He also told her that by virtue of this program they
would be able to put on, send over prisoner of war mes-
sages to the families of the prisoners of war and he said
(Def. XLV-4988:14-17):
'^ Place yourself in my command — place yourself in
my hands, and just do exactly as I tell you. That is
all I am going to tell you to do."
Throughout the war from February, 1942, the defendant
repeatedly told Chiyeko Ito that she didn 't like Japan and
its people, that she hated the Japanese militarists, that
she always referred to the Japanese people as ^^ Japs''
and *^ stupid", that she was going to keep her U. S. citizen-
ship ^^no matter what happens" and that she always told
her to keep her U. S. citizenship. (Ito, XL-4506-4513.) She
expressed similar views to Miss Ito on a number of oc-
casions during 1942-1945, stating that *^she would never
take out" Japanese citizenship, that the U. S. would win
the war, and that, despite the pressure brought upon her
by the police and neighbors she would keep her American
citizenship. (Ito, XL-4513-4518.) The defendant several
times told her that she '^ would never buy" any Japanese
war bonds. (Ito, XL-4520; Def. XLVI-5101.)
15
During the same period the defendant told Yoneko Kan-
zaki, nee Matsunaga (who had been conscripted by the
Japanese, Kanzaki, XLI-4572; 1-6), that she had been in-
vestigated by the police and the kempeitai, that she didn 't
like Japan, its ways, customs and the i)eople, that she
would never give up her American citizenship and become
a Japanese, that Japan didn't have a chance in the war,
that she had refused to change her citizenship despite
pressure of the kempeitai. (Kanzaki, XLI-4566-4570.)
Mrs. Kanzaki also testified that she received instructions
at Radio Tokyo that she was not to associate with the
personnel of the Zero Hour '* because they were enemies
of Japan '\ (XLI-4578.) She also testified that the de-
fendant did not associate with Japanese nationals at
Radio Tokyo, limiting her associations to the POW's.
(XLI-4581.)
She continually refused to buy Japanese war bonds.
(Kido, R. 837; Ito, X1.-4520; Okada, R. 779; Def. XLVI-
5101 ; 5142-4; d 'Aquino XLIV-4843-4.) She refused to con-
tribute metal ware, old clothes or cotton to heljj the
Japanese war effort. (Kido, R. 837; Def. XLVI-5143-4.)
Instead she bartered her old clothes for food, medicine
and tobacco which she delivered to the POW's at Bunka
who were starving. (Def. XLV-5047.) She refused to
contribute to the Japanese Red Cross. (Def. XLVI-5143.)
She refused to bow toward the Emperor's palace. (Def.
XLVI-5144.) She refused to celebrate any Japanese na-
tional holidays. (Def. XLVI-5144.) So far as possible
she did not associate with Japanese nationals but was
friendly to the POW's. (Kanzaki, XLI-4581; Hayakawa,
R. 388; d 'Aquino, XLIII-4787; XLIV-4893; Ozasa, R.
439.) Whenever she mentioned the Japanese she referred
16
to them contemptuously as ^^Japs". (d 'Aquino, XLIII-
4785-6; Ito, XLV-4513; Ince XXXI-3512.) Her neighbors
referred to her as an American spy. (d 'Aquino, XLIII-
4789.)
Those repeated expressions and acts of loyalty to the
United States and of opposition to Japan made by the
defendant while in the heart of the enemy country when
she was surrounded by a hostile people, in conjunction
with her continuous secret aid to the Allied POW's which
she rendered at the risk of her owti life completely nega-
tive any suggestion of criminal intent upon her part. It
certainly is not a rule of law to expect a little girl to
conform to the same standards of courage as might be
expected of a male in like circumstances. It was an
extraordinary exhibition of courage for the little typist-
announcer defendant to run that risk when it was not
even to be expected of a soldier.
2. DEFENDANT'S CITIZENSHIP.
Defendant always refused to take out Japanese citizen-
ship, though in wartime Japan great and continuous pres-
sure was put on her to do so. (The fact that defendant
did not take out Japanese citizenship is part of the gov-
ernment's case against her. See infra. Also see Def. Ex.
BP, L-5522, certificates of Minister of Home Affairs,
Nakamura, XXII-2321 :l-8, Defendant, XLIV-4934 :2-13,
XLV-4958:19-24; Kanzaki, XLI-4566 :13-4569 :23 ; Ito, XL-
4508:22-4511:20; Cousens, XXVIII-3160:16-19.) The
United States Government rewarded this steadfastness by
denying her claims of American citizenship on all oc-
17
casions except when if wanted to prosecute her for
treason. At the outbreak of the war the government re-
pudiated her citizenship rights by denying her a passport
and making an entry that her citizenship was not proven
(Def. Ex. A, 11-116; see also F^hilip d 'Aquino, XLTII-
4830:5-16; Def. XLVI-5171 :20-5172:4) although exactly
the same material then was before them which the Gov-
ernment later used at the trial below to ^^ prove" her
citizenship. (See Defendant's birth certificate and her
own claims to U. S. citizenship. See Gov. Ex. 4, 1-70,
passport application of 1941, which recites that defendant
had brought her birth certificate with her to Japan.)
Afterwards the American authorities informed her first
that she was stateless, and second, that she was Japanese.
(See Def. XLVn-5215 :12-15, 5270:14-16; L-5526 :17-25—
stateless; Def. XLVII-5229:l-6, L-5524:9-l 2— Japanese.)
Only when the United States arrested defendant on '^sus-
picion of treason" in 1945 (Def. Exh. P, XVI-1603) and
for purposes of the present prosecution did the govern-
ment claim or even admit that the defendant had a claim
to American citizenship.
On April 19, 1945, the defendant married Philip
d 'Aquino, a Portuguese citizen, who was of three-fourths
Japanese and one-fourth Portuguese blood. (Pinto, R.
728-9; Philip d 'Aquino, XLIII-4733:4, 4734:6-10, 4759:20;
Defendant, XLV-5070:7-8.)
There is considerable testimony in the record as to de-
fendant's acquiring Portuguese citizenship through the
marriage to her husband on April 19, 1945. For the most
part this api)eal is not concerned with that issue, since
the jury found in defendant's favor on overt acts 7 and 8,
18
the only ones alleged to have occurred after the date of
the marriage. The matter of her marriage and citizenship
is touched, however, in the instances where the prosecu-
tor's misconduct in dealing with it is of such a nature as
to affect the entire case.
3. JAPANESE PLAN IN BROADCASTING TO
ALLIED TROOPS.
Major Shigetsugu Tsuneishi was the head of the Jap-
anese military broadcasting system during the war. He
was a witness for the prosecution. On direct and redirect
he testified that the Japanese purpose in broadcasting to
the Allied troops was to weaken their will to fight (Tsimei-
shi, 111-2^7:5-8, 238:13-4; IV-245:l-3; VII-462:9-463:l) ;
on cross-examination he gave an entirely different story.
He said that w^hile the Japanese army was losing, it was
extremely difficult to put on any propaganda program, for
which reason propaganda was withheld until such time as
the Japanese might be winning again or making a success-
ful resistance. In the meantime the Japanese high com-
mand itself limited the broadcasts to simple entertainment
programs. (Tsuneishi, V-321:l-19; see Appendix p. 1.) It
is interesting that the programs even included burlesques
upon the Japanese themselves! {Mitsushio, XII-1164:9-
21.) As the war went, no opportunity to broadcast propa-
ganda ever presented itself. {Tsuneishi, V-321:17-19.)
19
4. CONTENTS OF DEFENDANT'S BROADCASTS.
The government's evidence is self-contradictory as to
the contents of the defendant's broadcasts. In general it
falls into three parts: (1) extant scripts, (2) American
records of monitored programs, (3) unaided recollection
of persons who claim they heard the broadcasts. There is
a complete inconsistency hetiveen the extant scripts and
recordings of programs on the one handy and witnesses^
recollections on the other. All existing scripts and all
transcriptions of anything said by defendant are com-
pletely innocuous. They contain no propaganda whatso-
ever. On the other hand, the unaided recollection of wit-
nesses is mostly of alleged jiropaganda broadcasts, and
all testimony of supposed propaganda broadcasts came
from this unreliable source (including Overt Act 6, on
which defendant was convicted).
Mitsushio testified that he explained the alleged propa-
gandistic nature of the program to defendant. (Mitsushio,
X-908: 18-25.) Defendant denied this, saying she was
aware of it only indirectly when Cousens said he was
using the program for his own purpose rather than for
any Japanese purpose. (Defendant, XLVII-5307 :15-
5308:3; XLV-4999 :3-10 ; XLVI-51()2 :7-13 ; 5103:1-5104:13;
XLVIII-5383 :17-5386 :22.)
The expanded Zero Hour program opened with the
musical piece '^Strike Up The Band" which was followed
by the reading of prisoner of war messages. (Defendant,
XLV-5000-1; Cousens, XXVIII-3191.)
Cousens had persuaded the Japanese authorities to
allow POW messages to be broadcast. (Cousens, XX\Mll-
3192.) The purpose was to convey news to Allied troops
20
of the whereabouts of missing and captured men and to
let the families and friends of the POW's learn of their
survival and so bolster morale on the home front.
(Cousens, XXVIII-3192.) Hundreds of POW messages
were broadcast over the Zero Hour program. Cousens,
XXVIII-3191; Tsuneishi, IV-303-306; Ince, XXXI-3477.
These messages also were rebroadcast over other POW
programs at Radio Tokyo and vice versa. (Tsuneishi,
VI-397; Ince, XXXI-3499.)
This was followed by Cousens' introduction of the de-
fendant's part through the statement '^Here comes your
music". Thereupon the defendant, performing the simple
duties of a disc jockey, read the script introductions to
the recorded musical pieces of a classical, martial, semi-
classical and jazz nature. (Def. XLV-5002-5; Cousens,
XXVIII-3189, 3194.) Cousens wrote all her script except
for a few which were done by Ince. (Cousens, XXVIII-
3198-3203; Govt. Exhs. 22, 23, 44; Def. Exh. R. Ince,
XXXI-3479-3483.) Later Cousens referred to the defendant
as "Ann", derived from his script showing where music
was to be announced, and later referred to her in the script
as "Orphan Ann" because he considered her as one of
the members of similar persons away from home who
were in the U. S. Task Force in the Pacific known as
"Orphans of the Pacific". (Def. XLV-5009; Cousens,
XXVIII-3195-6.)
Until the latter part of December, 1943, Cousens re-
iterated to her that the Zero Hour was simply an enter-
tainment program for the Allied soldiers. He then told
her that "George Nakamoto thinks he is getting a home-
sicky program" — "they think they are using us, but we
21
are using thein'^ — The program is being very good enter-
tainment program and it is serving our purpose. If we
can send as many prisoner of war messages as we can
possibly squeeze in, I think we are doing O.K." He told
her he ^'wanted to send these messages home to let the
families know the whereabouts of the captured prisoners
of war being held in Japan to help morale on the home
front". (Def. XLIX-5507-8; Cousens, XXVIII-3192.)
About Christmas, 1943, Cousens revealed to her that they
were defeating the purpose for which the Japanese in-
tended the program. (Cousens, XXIX-3215; 3218.)
a. SCRIPTS AND TRANSCRIPTIONS.
The extant scripts are Government Exhibits 22 (XIII-
1356), 23 (XIV-1465— a group of scripts), 44 (XXVI-
2823), 74 (XLVIII-5354) and Defendant's Exhibit R
(XXVIII-3199).
Exhibits lG-20 inclusive are recordings of the program
made by the Portland, Oregon, monitoring station. (XVI-
1627, 1638, 1646, 1691, 1694.) Exhibit 21 is a recording
made by one of the monitors at the Silver Hill, Maryland,
station, who recorded a Japanese broadcast for his own
pastime. (XVII-1729.) Exhibit 25 contains a transcript of
the material recorded on Exhibits 16-21 inclusive.
(XVII-1819 — Exhibit 25 also contains other matter, not
properly in the record, which we discuss later.)
Exhibits 63 (LII-5852) and 75 (LII-5827) are tran-
scripts taken by the monitoring station in Hawaii.
These thirteen exhibits constitute all the record evidence
of the contents or alleged contents of defendant's broad-
casts.
22
They show no propaganda whatever; instead they con-
sist of introductions to ymisic, done in the mamner of a
nightclub master of ceremonies.
In strange contrast is the testimony of persons who
claimed to remember hearing snatches of the defendant's
programs. The prosecution introduced a great deal of
such evidence. Before outlining it, we must note the
excuse which was offered for not introducing more scripts.
(It was agreed in the course of the oral argument that
defendant must have taken part in about 340 programs.
See calculation of the U. S. Attorney, I Arg.-20:6-ll.)
The prosecution had its Japanese witnesses testify that
just before the surrender the Japanese destroyed all the
scripts on which they could lay hands. (Oki, IX-664:11-
665:1; Mitsushio, X-906:10-907:3.) Inasmuch as exhibits
22 y 23, 44, 74 and R had all come from the defendant's
possession, it was even insinuated in argument that they
were not typical, but that defendant had gone out of her
way to savef specially favorable scripts. (II Arg. 322:2-23.)
This whole presentatiton was proved fraudtdent hy the
Governments rebuttal witness, Frances Roth. She testified
(a) that Hawaii had monitored the Zero Hour over an
extended period of time {Roth, LII-5847 :13-23, 5861:24-
5862:5), (b) that permanent monitor's files were kept
{Roth, LII-5866:23-5867:l, 5886:22-5887:9), (c) copies
were mailed to Government departments, clients of the
Federal Communication Commission {Roth, LII-5883:17-
5884:5), (d) that at least some of the monitored tran-
scriptions were destroyed by the American authorities as
a matter of routine. {Roth, LII-5849 :7-9, 5855 :20-21, 5866 :
9-12, 5867:2-4, 5870:17-5871:2.) This shows first that at
23
one time the Government had numerous transcriptions of
the Zero Hour programs; second, that the Government
either still had these at the time of the trial OMd deliber-
ately suppressed them or had previously destroyed them
by way of routine, presumably as being innocuous.
The Government's attempt to create the impression that
it could not produce other scripts or transcriptions be-
cause all records had been destroyed by the Japanese was
therefore an attempt to deceive the defendant, the Court
and the jury.
Moreover, since the monitored transcriptions in Exhibits
16-21 and 25 are of the same nature as the scripts turned
over by defendant (Exhibits 22, 23, 44, 74, R), it is evi-
dent that all are representative. This fact is especially
significant in assessing the contradiction between the con-
tents of the scripts and transcriptions on the one hand
and the ^v^tnesses' unaided recollections on the other.
Further, we direct attention to the fact that it is the duty
of the Government to product evidence which sheds light
on an accusation whether it makes for or against a de-
fendant. U, S. V. Palese (C.C.A.-3), 133 Fed.2d 600, 603,
and cases there cited. The prosecution failed to perform
this duty in the instant case to the serious detriment of
the defendant. This resulted in a denial of due process
and of a fair and impartial trial.
b. RECOLLECTION OF WITNESSES.
The witnesses who testified to their recollections fall into
two groups : those who claimed to have overheard the
defendant as she broadcast in 'J'okyo, and those who
claimed to have recognized her voice as they listened to
24
the radio. The former testified to momentary snatches
which they said they heard in passing; the latter to what
they believed they had heard as they were listening to the
radio for recreation, from a voice which they identified
after listening to Government Exhibits 16-21.
Both groups claimed to have heard much the same
things, none of which appear either in scripts or transcrip-
tions: unfaithful wives and sweethearts, ice cream and
steaks, American battle losses, jungle fever and mud. In
addition, alleged broadcasts of troop movements were
testified to only by soldiers who listened to the radio for
recreation.
The witnesses who said they overheard bits of defend-
ant's broadcasting at Radio Tokyo are further subdivided
into two classes : those who say they saw her talking into
the microphone, and those who claim they recognized her
voice over the monitoring system.
(1) Witnesses who claim to have overheard defendant at Radio
Tokyo.
They included Oki and Mitsushio, the two mainstays of
the prosecution, plus the others listed below. We sum-
marize what each said as to defendant's alleged broad-
casts (excepting alleged overt acts on which the jury
found in her favor) :
0/bi— IX.657ff.
Overt Act 6 — October, 1944, referring to Battle of
Leyte Gulf, ^^Now you fellows have lost all your
ships. You really are orphans of the Pacific.
Now how do you think you will ever get home?''
(IX-672:16-18.)
25
Mitsushio—X-S96ff.
Overt Act 6 — ^'Now you have lost all your ships. You
really are orphans of the Pacific. How do you
think you will ever <i:et home?'^ (XT-974:1-3.)
*******
'*Cold water sure tastes ^ood" — allegedly after
hearing news that an American contingent had
landed on an island and were short of water.
(X-919ff.)
On this one, the witness first said he was present in the
broadcasting room (X-924:13-17) ; later that he heard
defendant over the monitor (XII-1 140:2-22) and still later
that he was talking about two different occasions. (XITT-
1322:5-12.)
Nakarmirar-XXl-22SSfi,— ''in the fair' of 194^
^'Now you have lost so many ships, how are you
going to find your way home. Or something to
that effect''. (XXI-23()():22-5; offered as Overt
Act 6, XXI-2295:21-4.)
Moriyama — XXIV - 2542ff . — ( dancing in Coconut
Grove, ^*my but it is hot" — ice cream at corner
drugstore).
This witness said he did not pay much attention to the
program. (XXIV-2r)00:13-15.)
Sugiyama — XXlV-2501fT. — "You must be lonely out
there. Let me cheer you up with some music."
(XXI ¥-2506:16-18.) "It is very uncomfortable
out there." (XXIV-2508:10.)
This witness was at least partly favorable to the defense.
The deliberate distortion of his testimony in the prosecu-
26
tion's closing argument was duly assigned as misconduct
and is one of the claims of prejudicial error.
Igaras]ii—XXlY-2G02E,—JJ. S. ship losses —^^stop
fighting and enjoy life — in U. S. you listened to
music with sweethearts, now listen.''
This witness Avas vigorously prompted by the prosecutor
(XXIV-2622:7-ll, 2623:1). He later testified that in 1943-
1945 he did not know enough English really to follow the
defendant's broadcasts. (XXIV-2648:18-2651 :4, 2651:19-
23.)
Mi— XXV-2674ff.— "why don't you stop fighting and
listen to good music — why don't you go back to
your loved ones in the States instead of being
fighting in the jungles in mosquitoes from fox-
holes". On cross-examination he said he remem-
bered definitely only the words "jungles",
"mosquitoes", "foxholes". (XXV-2725:12.15.)
Higuchi — XXV-2742 — good time with girls in islands f
miss wives and sweethearts, ice cream, listening
to juke boxes.
This witness claimed she listened to defendant's broad-
casts for recreation over the monitor while the Avitness
herself was at work typing. (XXV-2773:3-15.)
Fi//arm— XXVI-2849ff.— "why stay in foxholes when
your girls are running around with other men —
about time you went home — have fun back
home".
As will be shown infra, this witness's description both
of the broadcasting studio and of the person broadcasting
27
Avas contradicted by other witnesses. "I'Jiere is a serious
({uestion whether he was even referring to the right per-
son.
(2) Witnesses who claim to have heard defendant's broadcasts
over radio.
The witnesses who claimed to have heard defendant's
voice on their receiving sets must be viewed against the
background of certain other evidence, most of it coming
from the prosecution. Defendant broadcast on the Zero
Hour which ran from ()-? ]).m., Tokyo Time. {Oki — IX-
728:21-23, 782:21-5, 786:20-788:13; Mit,sushio—XlU-12m :
3-6, X-924:l-4; Ishii, XVII-1 828:1 0-14; Nakamura, XXI-
2290:5-2291:25; Moriyama, XXrV-2544:9-l 1, 2549:19-22,
2557:18-21; Gor/t Exhibit 25 pp. 1 (heading), 4 (heading),
10 (ft.), 12 (heading); Penniwell, XVI-1634 :3-7, 1640:11-
14, 1647:17-18; Sodaro, XVII-1731 :13-17; Roth, LII-5864:
4-12.)
Of the above witnesses, the Japanese give Japanese
standard time (Japan was on standard time throughout
the war, Momotsuka, XXIII-2422:16-20). Penniwell and
Sodaro give Eastern wartime and Roth gives both Eastern
and Hawaiian wartime. Gov't. Exhibit 25 gives Eastern
wartime in its headings and Japanese standard time in its
text on page 10. Defendant \s Exhibit T (XLVI-5139) is a
World Time ]\lap showing the different time zones, as they
existed during the period covered by this case (modified
by ''wartime" in the United States and Australia). While
the Zero Hour ran from 6-7, defendant ordinarily left at
6:30, when her j)art of the program was concluded. (Okiy
IX.787:20-788:13; Moriyawa, XXIV-2549:19-22: Philip
d'Aquino, XLIV-4883:10-14.) According to defendant her-
28
self she had stayed the full hour from November, 1943,
to May, 1944; from May, 1944, to the end of the war she
left at 6:25 or 6:30 (Def. XLV-rD012:15-5013:6). Exhibit S
(XLVI-5139) consists of calendars for the years in which
defendant broadcast. She ahvays had Sundays off {Oki,
IX-786:15-19; Mitsushio, XlI-1152:3-7; Ishii, XVIII-1854:
21-1855:1; Morkjarna, XXIV-2559:7-14). During the en-
tire time that Moriyama was on the Zero Hour from May,
1944, to the end of the war (Moriyama, XXIV-2544:2-8)
she also had Saturdays off, [Moriyama, XXIV-2559 :11-14 ;
Defendant, XLV-5017:5-16.)
The Zero Hour was entirely in English. (Penniwell,
XVI-1649 :8-9 ; Moriyama, XXIV-2578 :20-22 ; Cousens,
XXIX-3311:19-25; Def. XLVI-5110:12-18.) With these cir-
cumstances in mind, we summarize the testimony of the
prosecution witnesses who claimed to have heard the de-
fendant on their receiving sets,
(See Appendix p. 2.)
Apart from discrepancies in the testimony of these
witnesses, it should be noted that each always reports
broadcasts about the particular island on which he hap-
pens to be, or about the partictdar part of the United
States from which he happens to come.
The defendant denied each and all of these alleged
broadcasts. (Def. XLVI-5 105-511 8.) Other witnesses from
both sides, who were on the Zero Hour for extended
periods of time said either that defendant had not broad-
cast any or most of the foregoing items or that they did
not remember her having done so.
{Nakamuror-XXll-2337 -2341 ;
Sugiyama—XXTV -2b32-2f)3H ;
Moni/ama— XXI V-2583-6 ;
29
Cousens— XXIX-3314-24, XXX-3326-32;
Ince— XXXI-3486-92;
Reyes— XXXII-3621-30 ;
Ghevenian— R. 356-57, 370-71;
Hayakawa — R. 385 ;
Saisho— R. 402;
Yanagi— R. 420-21.)
Members of the American Armed Forces, called by tlie
defense, who had listened regidarly to the Zero Hour on
their radios (and who, unlike the prosecution witnesses
had the time, etc., correct) gave similar testimony:
Whitten— XXX Vni-43 16:22-43 17:1, 4324:12-17, 4325-
4335;
Stanley— XXXIX-4344, 4346 :14-4357 :5 ;
Speed— XXXIX-4397 :3-20, 4402 :19-4403 :25, 4405 : 1 0-
24, 4406 :21-4407 :1 ;
Paul— XL-4452 :7-18, 4454:4-25, 4460:2-23, 4466:6-10;
Hosier— XL-4470 :25-4472 :2, 4475 :20-4476 :13.
Moreover, witnesses on both sides gave evidence of
other Japanese programs wliich did broadcast some of the
material attributed to defendant and at the times of day
fixed by the prosecution G. I. witnesses. The following
summarizes the testimony on this subject wliich was ad-
mitted (much was blocked by objection and these* rulings
constitute one ground of appeal) :
Ts\ineishi—V-?^^1 :1 1-371 :16 ;
OA;i— IX-745 :3-746 :14, 753 :1 0-754 :1 3 ;
Cousens— XXIX-331 6 :9-331 7 :9, 331 8 :7-3320 :24 :
XXX-3380:1 5-3385:3 Cousens is particu-
larly specific with reference to the material
on the other programs and the hours }vhen
they were broadcast) ;
so
Hayakawa— R. 379 ;
Saisho— R. 401;
Paul— XL-4463:2-6;
Mosier— XL-4475:6-19;
Sexton— XL-4484 :17-4487 :16 ;
Kanzaki— XLI-4575 :2-4, 4581:11, 4584:5-8, 4585:11-
4586:11. (Mrs. Kanzaki is likewise specific in
giving the time and subject matter of other
broadcasts.)
Defendant— XL V-5073 :l-5074 :24, XLVI-5075 :17-5077 :
16.
There were many women broadcasters who appeared on
the Zero Hour in addition to the defendant. They were
Ruth Hayakawa, June Suyama, Mieko Furuya (later Oki),
Catherine Muraoka, Margaret Kato and Mary Ishii.
(Noda — R. 342; Ghevenian (Sagoyan)^ — R. 358; Haya-
kawa—R. 380-1 ; Saisho— R. 403 ; Ozasa— R. 439, 441 ;
Defendant— XLV-5073 ; Tsuneishi—Y-SGl -370 ; Mit-
sushio—XIl-U^2-3, XIII-1302-3; OA:i— IX-760-61.)
There were many of the same women and other women
who broadcast from Radio Tokyo as disc jockeys, an-
nouncers and commentators at all hours of the day and
night. Among these were Ruth Hayakawa, June Suyama,
Mieko Furuya, Catherine Muraoka, Margaret Kato, Diana
Powers, Mary Ishii, Foumy Saisho, Miss Nakanshi, Kay ,
Fujiwara, Frances Topi)ing, Lillie Abegg.
(Defendant— XL V-5074, XLVI-5075-76 ; Tsimeishi—
V-367-75 ; Mitsushio—Xlll-1301M.)
Further, the Japan-controlled broadcasting stations in
Japan, Singapore, Arai, Shanghai, Manila, Formosa,
Korea, Bangkok, Saigon, Nanking, Rangoon, Java and
31
Hsinking were broadcasting in Kn<::lish at all hours of
the day and night, Women disc jockeys, news announcers
and commentators were broadcasting from these stations
also.
{TsuneAshi—y -379-83, ¥1-384-93; Exh. 39; Momotsuka
— XXIII-2421, 2424-25, 2427-28.)
The fact that Japan-controlled broadcasting stations
filled the air with broadcasts in English by various women
announcers day and night rendered it practically impos-
sible for a given announcer's voice to be identified by
listeners.
5. ALLEGED CONFESSIONS AND ADMISSIONS
OF DEFENDANT.
The prosecution introduced various writings and state-
ments of the defendant. They fell generally into three
classes (1) signed confessions (Exh. 15, VTTT-615; Exh.
My XIV-1465) (2) papers on which the defendant had
written her name followed by the words ^^ Tokyo Rose"
in quotation marks (Exh. 2, 1-37; Exh. 14, VTT-481 ; Exh.
2^, XIII-1356: some of the eighteen scripts contained in
Exh. 23, XIV-1465; Exh. 44, XXVI-2823; Exh. 74, XLVTTT-
5354) ; (3) various alleged oral statements.
We shall discuss the contents of Exhibits 15 and 24 in
connection with the contention that both were inadmis-
sible under the rules governing extra-judicial confessions
and that their admission w^as prejudicial error. The
'* Tokyo Rose" signatures wull be discussed in connection
with errors in rulings on evidence regarding the appli-
cability of this name to the defendant.
32
The alleged oral admissions of the defendant (and her
own testimony on the matters involved) are summarized
herewith.
(See Appendix p. 6.)
6. AID TO ALLIED PRISONERS OF WAR.
Witnesses on both sides testified without any contradic-
tion that defendant brought food, cigarettes, medicine, a
blanket, short-wave news of Allied successes to the Allied
prisoners of war both at Radio Toyyo and Camp Bunka.
The government witnesses on this point were:
Ls/^M— XVIII-1855 :12-1856 :10 ;
Mitsushio~XlU-13lO:21-\Sn,2.
The defense witnesses were —
Cousens— XXIX-3249 :7-24, 3252 :2-3253 :17, 3264 :20-
3267:23, 3270:19-3272:20, 3280:9-3282:16;
Phil d'Aquino— XLIII-4764-71;
Ince— XXXI-3503-5, 3509:3-3510:19, 3512:22-3514:11;
Henshaw— XXXVII-4172 :13-4184 :13 ;
Defendant— XLV-5034-5050.
See also /sM— XVIII-1865 :21-24 (if defendant did com-
mit treason she was not cognizant of the fact).
7. TECHNICAL EVIDENCE.
The Government introduced technical evidence as to the
receiving sets at the Portland monitoring station and the
method of recording Exhibits 16-21 {Penniwell XVI-1614ff, !
Green, XVII-1740flP, Baptist, XVII-1803ff) and as to the
33
broadcastin<:!^ apparatus and direction of tho beam in
Japan (Tanahe, XXTI-2348ff, Okanioio, XXTT-2365fr,
Momotsuka, XXII-2388ff). The chief significance of this
evidence is that the Portland equipment and personnel were
shown to be so good that they could hardly have missed
any broadcasts that were coming over, and certainly not
whole series of broadcasts of the same nature or on the
same subject. (Penniwell, XVI-1618:]4-18, 1618:22-1619:7,
1621:17-19, 1622:14-20; Green, XVIT-l 744:4-10, 1753:21-
1754:2; Baptist, XVII-1806:ll-23).) That Portland was
well within the range of recei)tivity is shown by the fact
that witness Sodaro made a record from the much more
distant station at Silver Hill, Maryland, (Sodaro, XVIT-
1719f¥.) All this casts particular doubts upon the testi-
mony of the government's witnesses w^ho testified from
unaided recollection that they heard all kinds of things
which the Portland station apparently never picked up.
8. DEFENDANT *' BROUGHT" UNDER ARMY GUARD.
The Government, to establish jurisdiction and venue,
introduced evidence showing how defendant was brought
to the United States. She was brought on an Army trans-
port in the custody of Lt. Prosnak and WAC Maj. StuU,
both of the regular army (Van Eycken, ll-118ff ; Prosnak,
ll-131ff, III-164ff; Stull, Il-145ff). By this evidence the
Government established its own clear and open violation of
10 U.8.C. 15, which forbids the Army to be used as a posse
comitatus.
34
9. OTHER DEFENSE EVIDENCE.
In addition to evidence already mentioned the defense
introduced evidence on the following subjects:
a. The issue of duress. The facts will be detailed
when we discuss the issue.
b. That defendant always expressed herself as being
pro- American; Cousens, XXIX-3308 :19-22 ; Ince, XXXI-
3512:7-16; Ito, XL-4509:3-4510:l, 4511:21-4512:9; 4513:6-
11; 4516:22-4517:5; Kanzaki, XLI-4567 :9-21 .
c. That members of the Japanese broadcasting staff
were instructed not to associate with the personnel of the
Zero Hour, since the latter were ^^ enemies of Japan",
Kanzaki, XLI-4578 :13-18.
d. Villarin testified that he saw defendant broadcasting
alone in the broadcasting studio, presenting a profile view
to a (person entering the door, and wearing no glasses;
the defense witnesses testified that the members of the
Zero Hour were never alone in the studio while broad-
casting; that the broadcaster in Studio 5 (from which
defendant broadcast) presented a full-face view to anyone
entering the door; that defendant always wore glasses
when she broadcast — Whereas Villarin said Cousens in-
troduced him to defendant, both Cousens and the de-
fendant denied that. See Nil, XXV-2703 :25-2704 :17 ;
Cousens, XXIX-3312:18-3313:4, XXX-3393:6-3394:14; De-
fendant, XLVI-5126-32.
See also:
Hayakawa, R. 385 (top) 388 (ft.);
Ozasa, R. 436-7 (defendant (juestioned by Kempeitai
when Zero Plour played "Stars and Stripes For-
35
ever" after the fall of Saipan! Ohevenian, R. 357,
same incident;
Reyes, XXXIl-361 4:28-361 7 :1 1 (for prosecution evi-
dence concerning this incident, see Tsuneishi, V-
377:15-21, Mitsushio, XTT-1 179:21 -1180:25.
e. The defendant was imprisoned thirteen months in
Japan, 1945-6, on ''suspicion of treason". (Def. Exh. N,
XLVn-5191; Exh. O, XV-1586; Exh. P, XVI-1603) and
the government has lost relevant evidence. (Cowan,
XXVI-2827:8; also 2999, 3000.)
Evidence which the defendant offered hut ivhich was
excluded will he discussed under errors of law.
SUMMARY OF ARGUMENT.
The defendant's contentions fall into two classes — those
which would require directions to discharge her and those
which would require a new trial.
1. CONTENTIONS CALLING FOR DISCHARGE
OF DEFENDANT.
a. Since the United States legalized naturalization of
its citizens to the citizenship of an enemy country during
the last war, the adherence-aid-comfort clause of the
treason statute was inoperative.
b. The year's imprisonment of defendant without for-
mal charges in Japan coupled with loss of evidence denied
her a speedy trial in violation of th \\\\\ Amendment (or
alternatively constituted former jeopardy and other vio-
36
lations of the Vth Amendment ) and bars the present
prosecution.
c. The uncontradicted evidence that defendant aided
Allied prisoners of war casts a reasonable doubt upon her
alleged treasonable intent, making the proof on that issue
and consequently upon the whole case insufficient.
d. The United States cannot establish either jurisdic-
tion or venue by showing that it used the Army as a
posse comitatus to bring the defendant to the United
States (in violation of 10 U.S.C. 15); hence there was no
jurisdiction in the District Court.
e. Since the indictment was procured by perjured evi-
dence, there was no jurisdiction to try the defendant.
2. CONTENTIONS WHICH IF SUSTAINED WOULD
REQUIRE NEW TRIAL.
Contentions calling for a new trial will be grouped
primarily for convenience in presentation. In some in-
stances these Avill be made according to subject matter
and cover both instructions and rulings on evidence imder
a particular subject. In other instances the grouping will
be procedural, i.e., errors in rulings on evidence, errors in
instructions, misconduct of the prosecutor.
The defense of duress will be treated as one subject,
covering both errors in instructions and errors in rulings
on evidence.
The same is true for the defense of the Geneva Con-
vention,
37
All errors relating to Overt Act G will be grouped to-
gether— both erroneous rulings on evidence, misconduct
of the prosecutor and ei'roneous instructions. Likewise
all errors on the cross-examination of the defendant.
Erroneous admission of the defendant's confessions
(Exhibits 15 and 24) will also be treated as a separate
subject.
Separate treatment \vill be given the identification of
defendant as ^' Tokyo Rose" and the denial to the defense
of compulsory process for the attendance in Court of its
Japanese witnesses.
Otherwise the errors will be considered under their
procedural classification (instructions, rulings on evidence,
prosecutor's misconduct) w^hich will be subdivided by sub-
ject matter.
We consider the two major classes of contentions in
order.
I. CONTENTIONS CALLING FOR DISCHARGE
OF DEFENDANT.
A. INASMUCH AS THE UNITED STATES PERMITTED NATU-
RALIZATION OF ITS CITIZENS TO ENEMY CITIZENSHIP
DURING THE WAR THE ADHERENCE-AID-COMFORT
CLAUSE OF THE TREASON STATUTE WAS INOPERATIVE.
During the recent war the United States permitted its
citizens to become naturalized to the citizenship of an
enemy belligerent. It is our position that this rendered
the adherence-aid-and-comfort clause of the treason stat-
ute inoperative for the following reasons:
38
1. DURING THE RECENT WAR THE UNITED STATES PERMITTED
NATXJRALIZATION TO THE OPPOSITE BELLIGERENT.
The United States at different times has followed vari-
ous policies with respect to the right of its citizens to
expatriate themselves in wartime. Such expatriation is
of at least two types: (1) where a person assumes the
citizenship of an allied or neutral country; (2) where a
person assumes the citizenship of an enemy country.
Under English law, no citizen could expatriate himself
at all either in peace or war without the sovereign's con-
sent.
2 Kent's Commentaries, Lecture XXV, 2 (p. *42).
Before the enactment of any legislation on the subject,
the American Courts were in doubt as to what rule should
apply in the United States. Kent gives the \aew that ex-
patriation is permissible except in wartime.
2 Kent's Commentaries, Lecture XXV, 2 (p. *43).
*'The writers on public law^ have spoken rather
loosely, but generally in favor of the right of a sub-
ject to emigrate and abandon his native country un-
less there be some positive restraint by law, or he is
at the time in possession of a public trust, or unless
his country be in distress or in war and stands in
need of his assistance.''*
In Talhot v. Jonson (1795), 3 U. S. 133, 1 L. Ed. 540, the
first case on the subject, two of the justices gave dicta on
the question. Justice Paterson argued (3 U.S. 133, 153) that
expatriation was permissible only if legal under general
laws, for otherwise "treason and emigration, or treason
*Italics in (luotations added throughout, except where otherwise
indicated.
39
and expatriation, would in certain cases be synonymous
terms". Justice Iredell pointed to the view of many au-
thorities that there could be no expatriation in time of
war and concluded that the ri^ht of expatriation was
subject only to 'limitation * * * such as the public safety
or interest requires". (3 U.S. 133, 163.)
Shanks iK Dupont (1830), 28 U.S. 242, 7 L. Ed. (Sm,
involved the marriap:e of an American woman to a Brit-
ish officer in 1781 — during the American Revolutionary
War. The Court held that this did not divest her of her
American citizenshij) — but on the general ground that citi-
zenship cannot be relinquished without the sovereign's
consent, rather than upon the special ground that the
United States and Great Britain were then at war. (28
U.S. 242, 246.) Inglis v. Sailors Snug Harbor (1830), 28
U.S. 99, 125-6, 7 L. Ed. 617, 626-7, likewise contains lan-
guage that citizenship cannot be dropped except by the
mutual consent of the citizen and the sovereign. To the
same effect was U. S. v. Gillies (1815), Fed. Cas. No.
15206 (Washington, Circ. Just.).
A contrary view had been expressed in Juando v. Tay-
lor (1818), Fed. Cas. No. 7558, 13 Fed. Cas. 1179, 1181.
The statute of 1868, 15 U.S. Stats, at L. 223, gives un-
qualified approval to the right of expatriation. Nothing
is said about a state of war.
In 1907, however. Congress enacted an express prohi-
bition against all expatriation in time of war. (Act of
March 7, 1907, 34 U.S. Stats, at L. 1228, Sec. 2.)
In 1940, when P]urope was already at Avar, this prohi-
bition was lepealed by the Nationality Act of that year.
40
(See Act of October 4, 1940, 54 U.S. Stats, at L. 1137, 8
U.S.C, 101 ff.) The repealer is Section 504, appearing at
54 U.S. Stats, at L. 1172. The new sections of the Na-
tionality Act of 1940 contain no such prohibition. In 1944,
after the outbreak of the war, Congress enacted further
legislation, perniitting even resideMts to renounce Ameri-
can citizenship during wartime (8 U.S.C. 801 (i)), and
made a number of administrative interpretations to the
same effect.
8 U.S.C. 801 (i) was applied particularly to persons of
Japanese ancestr^^ (See Acheson v. Murakami, 176 F.
(2d) 953; also Barber v. Aho, Nos. 12195 and 12196 and
McGrath v. Aho, Nos. 12251 and 12252.)
In the present case, where the defendant was residing
in wartime Japan, the Government requested and the Dis-
trict Court gave an instruction reading in part as follows :
LIV — 5961:7-13 ''She coidd have renounced and
abandoned her citizenship together with its privileges
and obligations at any time, but unless you find that
defendant d 'Aquino did in fact renounce and aban-
don her citizenship, the defendant d 'Aquino, being a
citizen of the United States, owed allegiance to her
native country * * *"
Defendant excepted to this instruction as being argu-
mentative (LIII — 5931 :9-ll), but for the purpose of argu-
ment in this part of the brief we shall accept it at face
value.
The above instruction is a great deal more than an
ordinary jury instruction. It is a statement of the posi-
tion, policy and practice of the Department of Justice
41
ivith respect to the actions of American citizens residing
in an enemy country during the last war.
Administrative interpretations by the State and Justice
Departments also contemplated not merely that American
citizens (of Japanese ancestry) could shed their Ameri-
can citizenship during the war, hut that they could ac-
quire Japanese citizenship. See Barber v. Abo, Nos. 12195
and 12196, which arose out of proceedings to deport the
petitioners to Japan on the theory that they had acquired
Japanese citizenship.
In the present case, moreover, four prosecution witnesses
and two defense witnesses testified that they had given
up American citizenship in Ja])an wnd acquired Japanese
citizenship during the continuance of the war. (Mitsushio ,
X-896 :17-897 :1 ; Kuroishi, XXT-2280 :15-23 ; Moriyama,
XXIV-2542 :1 -12 ; Nii, XXV-2675 :22-2676 :7, 2687 :6.17 ;
Ozasa, R. 434 ft.; Nakashima, R. 662.)
The Government itself brought out this fact on direct
examination of each of its four witnesses. This shows
that the Department of Justice considers the procedure
both legal and effectual,
(We shall show, infra, that the same legal consequences
would follow if the Government had authorized its citi-
zens only to become stateless, rather than to assume the
citizenship of the opposite belligerent.)
2. LEGAL NATURALIZATION TO THE ENEMY IN WARTIME
MAKES THE ADHERENCE-AID COMFORT CLAUSE OF THE
TREASON STATUTE INOPERATIVE (GENERALLY AND AS AP-
PLIED TO DEFENDANT).
We assume for purposes of argument that it is consti-
tutional to permit naturalization to the enemy belligerent
42
during wartime. If this wartime policy were unconstitu-
tional, the discrimination against the defendant would be,
if anything, even more flagrant.
Three provisions are involved in the proposition that
the Government's expatriation policy during the last war
made the adherence-aid-comfort clause of the treason
statute inoperative. They are the treason section of the
Constitution (Art. Ill, Sec. 3), the Fifth Amendment to
the Constitution, and the treason statute itself (18 U.S.C.
1— new numbering 18 U.S.C. 2381). The latter provides:
''Whoever, owing allegiance to the United States,
levies war against them or adheres to their enemies,
giving them aid and comfort wHithin the United States
or elsewhere, is guilty of treason. '^
The present case was explicitly limited to the second
clause (italicized). See instruction, LIV-5949 :15-17.
In view of the government's naturalization policy, the
adherence-aid-and-comfort clause of 18 U.S.C. 1 was un-
constitutional both under Amendment V and under Ar-
ticle III, Sec. 3.
a. The Adherence-Aid-Comfort Clause of 18 U.S.C. 1 was uncon-
stitutional (on its face and as applied) under the Fifth
Amendment.
In federal matters the due process clause of the Fifth
Amendment guarantees the same equal protection which
is expressly required of the states by the Fourteenth. See
Yu Cong Eng v. Trinidad, 271 U.S. 500, 526-8, citing the
state equal-protection authorities in a Fifth Amendment
case and holding (271 U.S. 500, 528) that there was "a
denial * * * of the equal protection of the laws". See also,
Sims V. Rives (CCA. D.C), 84 F. (2d), 871, 878, cert.
43
den. 298 U.S. 682; and U. S. r. Vonnf (D.C.-Pa.), 207
Fed. 861, 863, holding that equal protection is guaranteed
by the due process clause of the Fifth Amendment.
To satisfy the requirements of equal protection, classi-
fication nmst have a rational relation to the problem and
the end to be achieved. (Goesaert v. Cleary, 335 U.S. 464,
466 — the e(|ual protection clause *' precludes irrational dis-
crimination"; Bay side Fish Flour Co. v. Gentry, 297 U.S.
422, 429; Kansas City So. Ry. v. Road Impr. Dist. No. 6,
256 U.S. 658, 661.)
(1) In view of legalized naturalization to enemy belligerent, Adherence-
Aid-Comfort Clause of 18 U.S.C. 1 violates the Fifth Amendment on
its face.
On the question of adherence-aid-and-comfort, thoro is
no rational basis for distinction according to whether the
originally American citizen has taken out formal naturali-
zation or not. Certainly there is no rational basis for
exculpating those who go through a formal naturalization
and convicting of treason those who do not. If there is
any difference, it runs the other way.*
Two features characterize a formal naturalization, both
demonstrably irrelevant.
First, a naturalization is an open, formal declaration
of adherence.
Second, a naturalization is a declaration of intention
that the adherence shall be permanent.
•This case, of course, does not involve the question whether Con-
ifress could coiistitutionally ndo))t different })olicies for the Pacific
and Kuroi)caii theatres. All })ersons involved were in the Paeific
theatre.
44
Obviously, a formal declaration of adherence does not
make the adherence any less. If anything, it makes it
clearer.
Likewise, a declared intention that the adherence shall
be permanent is, at best, beside the point.
The constitutional definition of treason (Art. Ill, Sec.
3) includes any adherence — and certainly does not ex-
clude adherence which is intended to be permanent. From
a practical standpoint adherence-aid-comfort is equally
injurious while it is being carried out, regardless of how
long the citizen intends that it shall last. Here, again, if
the intention to adhere permanently has any relevance at
all, it should aggravate the treason, not nullify it. Conse-
quently the naturalization to an enemy country is not a
rational distinction for punishing adherence in one case
and exonerating it in the other.
Nor does it have any rational bearing on the question
of allegiance. The citizen owes allegiance to the United
States before he takes out enemy naturalization. Formal
*^ shedding of allegiance'' is never anything but the first
step in giving aid and comfort to the enemy. In practice
it consists merely in filling out and signing papers and
perhaps taking an oath. As we have already said, it com-
prises merely an open declaration of adherence and a
declaration that the adherence is intended to be perma-
nent.
So in each case we start with a citizen who owes alle-
giance to the United States. In one instance, there is a
formal declaration of permanent adherence to the enemy,
followed by active adherence and the giving of aid and
comfort. In the second instance there is simply an active
45
adherence followed by the chiving of aid and comfort. A
formal declaration obviously has no bearing on the ad-
herence-aid-comfort at all — at least none in favor of the
individual. ]>ut the Government's policy during the last
war legally sanctioned the naturalization of American
citizens to the citizenship of the enemy belligerent. That
being true, it is a violation of equal protection to punish
alleged adherence-aid-comfort as treason merely because
a citizen did not take out a formal naturalization in the
middle of the war.
(2) The Adherence- Aid- Comfort Clause of 18 U.S.C. 1 denies equal pro-
tection as applied to this defendant.
In this case the discrimination against defendant is
especially flagrant, because all four of the former Ameri-
can citizens ivliom the Government called as witnesses amd
who had become naturalized Japanese during the war,
were, like defendant, working at Radio Tokyo. See Mit-
sushio, X-897:2-19; Kuroishi, XXI-2281 :13-19; Moriyama,
XXIV.2544:2-11; Nil, XXV-2676:S-19, 2703:25-2704:17.
Mitsushio was defendant's chief. (X-897 :17-19.) He
testified he gave her directions. (X-908:13-25.) Nii was
stationed in defendant's own studio to spy upon her and
to make certain that she broadcast things that were suit-
able to the Japanese high command. (XXV-2703:25-
2704:17.) Most pointed of all, Mitsushio testified that he
ordered the defendant to make the alleged broadcast
ivhich constitutes Overt Act 6' — the only one on which de-
fendant was convicted. See Mitsushio, Xl-971 :12-18, 974:
17-20.
As we have shown, the policy of the Government was
to recognize wartime naturalization to Japanese citizen-
46
ship. The prosecutor went out of his way on direct ex-
amination to establish that fact with each of its said four
witnesses. Consequently, the immunity from prosecution
for treason which they enjoyed was not merely the result
of a failure to prosecute all cases. (Cf. Masonic Cemetery
V. Gamage, 38 Fed. (2d) 950, 955, CCA. 9.) It was part
of an affirmative governmental policy. The Government's
witnesses engaged in the same activity as defendant, and
unlike her, had an avowed intention of aiding Japan. The
distinction that they were '' naturalized'' is practically
and legally immaterial on the question of adherence-aid-
comfort. If it makes any difference, it aggravates their
acts.
Under these circumstances, prosecuting the defendant
for treason while affirmatively exculpating them, is about
as clearcut a denial of ecjual protection as can be imag-
ined.
b. In view of legalized naturalization to enemy belligerent Ad-
herence-Aid-Comfort Clause of 18 U.S.C. 1 was unconstitu-
tional under Constitution Article III, Section 3.
Art. Ill, Sec. 3, the treason clause of the Constitution
provides in part,
** Treason against the United States, shall consist
only in levying War against them or in adhering to
their Enemies, gi\ang them Aid and Comfort."
In permitting wartime naturalization to the enemy bel-
ligerent, the United States authorized adherence-aid-com-
fort to the enemy under certain circumstances and safe-
guards. Title 8, U.S.C. 801 (i) expressly provided that a
renunciation of American citizenship thereundei- becomes
47
effective only upon approval hy the Attorney General,
Where adherence to Japan is permitted after naturali-
zation, the Japanese naturalization order is adopted as
the equivalent of a license.
Whether such a course of action was constitutional de-
pends on whether the above provision of Art. Ill, Sec.
3, is construed as an affirmative command (that the
named conduct shall constitute treason) or as a restric-
tion (that nothing else shall constitute treason). As indi-
cated above this question need not be answered in the
present case : the policy was put into operation and would
be no less discriminatory against defendant by reason of
being illegal. The same thing holds true with respect to
the line of argument which we shall now develop.
Since the Government authorized adherence-aid-comfort
to the enemy under certain circumstances and provided
certain procedure was followed, what it attempts to pun-
ish in this case is an alleged adherence-aid-comfort sup-
posedly given under imaiithorized circumstances — or with-
out taking the necessary legal steps. Tn a word, the Gov-
ernment here proposes to punish unlicensed adherence-
aid-comfort to the enemy. This is an extension of war
policy in other fields, e.g., licenses are anthorised for trad-
ing with the enemy; unlicensed trading is })unished. 50
U.S.C. ch. 3A, Sec. 24(3) (a), (b). Laws making an act
legal if licensed, illegal if not licensed, are familiar i)i
American jurisprudence. In addition to 50 U.S.C. ch. 3A,
Sec. 24(3) (a), (b), compare the statutes considered in
Casey v. U, S., 276 U.S. 413 (narcotics); and U. S. v.
Miller, 307 U.S. 174 (firearms). There is no doubt that
the United States has powei- to ])unish unlicensed adher-
48
ence-aid-comfort to the enemy. But where it permits ad-
herence, etc., under certain circumstances, it cannot pun-
ish unlicensed adherence as treason.
That is true because Art. Ill, Sec. 3, gives a limiting
definition of what may be punished as treason. It says
treason shall consist only of ^'adhering to their enemies,
giving them aid and comfort''. If this means anything it
means that treason shall consist only of adherence-aid-
comfort as such. When we attempt to punish unlicensed
adherence-aid-comfort we have an entirely different type
of crime with different elements.
This distinction is of prime importance in the j^resent
case. In the first place, the defendant was not charged
with unlicensed adherence-aid-comfort ; in the second
place, there is not now, and there never has been, any
statute defining or punishing such acts; in the third place,
any lesser crime would be barred by the statute of limi-
tations. The last date mentioned in the indictment is
August 13, 1945 (R. 3) ; Overt Act 6 is laid in October
1944 (R. 6) ; the indictment itself was returned October
8, 1948 (R. 7). Any lesser offense would therefore be
barred by 18 U.S.C. 3282 or old Section 18 U.S.C. 582,
which fix a three-year limit on noncapital offenses. Both
of these sections were specially pleaded by the defendant
to cover precisely the contingency of a possible included
offense. (See, Motion to Dismiss Indictment, R. 54, 60.)
Since Art. Ill, Sec. 3, limits treason to adherence-aid-
comfort as such it necessarily excludes the lesser offense
of unlicensed adherence, etc., during times when certain
types of adherence, etc., are permitted. The attempt to
49
punish the defendant for treason while the United States
recognized wartime naturalization to Japanese citizenship
therefore transcends the restrictions of Art. Ill, Sec. 3.
3. THE SAME RESITLTS FOLLOW IF THE AMERICAN POLICY WAS
SIMPLY TO PERMIT AMERICAN CITIZENS TO DROP THEIR
CITIZENSHIP AND BECOME STATELESS.
The same result follows if all the above actions of the
Government are taken simply to express a policy that
American citizens might divest themselves of their citi-
zenship and become stateless during wartime. The clear
implication of everything that has been recited is that
after having formally divested themselves of American
citizenship, they were free to give adherence, aid and
comfort to Japan if they wished. The legal steps are
slightly different from what they would be in case of a
direct naturalization, but the end result is the same: by
fulfilling certain legal requirements a citizen could legally
adhere and give aid and comfort to the enemies of the
United States.
The prosecution of the defendant would still be uncon-
stitutional for the same reasons. From the standpoint of
adherence-aid-comfort, the legal proceedings do not fur-
nish a rational basis of distinction, and a treason prose-
cution, against defendant merely because slie did not go
through those legal formalities is a denial of equal pro-
tection.
Alternatively, what the Government is seeking to punish
in defendant's case is alleged adherence-aid-comfort with-
out a license (or, generally, without the requisite legal
formalities and authorization). Under the restrictions of
Article 111, sec. 3, that cannot be punished as treason.
50
B. DEFENDANT'S YEAR-LONG IMPRISONMENT IN JAPAN DE-
NIED HER A SPEEDY TRIAL IN VIOLATION OF THE SIXTH
AMENDMENT— ALTERNATIVE OBJECTIONS.
Defendant was arrested by the United States Army in
Japan on October 17, 1945, as being "suspected of trea-
son'' under an order dated September 10, 1945. She was
kept in custody of the Army until April 30, 1946, then
turned over to the Department of Justice. The Depart-
ment of Justice kept her in custody until October 25, 1946,
when she was released. (See Def. Exh. P, XVI-1603, Exh.
N, XLVII-5191, Exh. 0, XV-1586; Def., XLVI-5172:11-
5173:17, 5175:11-5176:11). This imprisonment denied her
a speedy trial in violation of the Vlth Amendment. See
In re Bergerow, 133 Cal. 349; In re Alpine, 203 Cal. 731,
and Harris v. Mun. Court, 209 Cal. 55.
Further, this imprisonment necessarily interfered with
defendant's opportunity to gather or preserve evidence
in defense of a possible treason charge, for suspicion of
which she was imprisoned (Exh. P, supra). Two things ag-
gravated the situation. In the first place, the defendant was
held wholly or partly incommunicado during the entire
year. In the second place, the Government actually lost
evidence which it had obtained from the defendant and
which would probably have aided the defense.
For the first month of her imprisonment, defendant was
held entirely incommunicado. She was at Yokohama
prison from October 17 to November 16, 1945. During
that period she was held wholly iyicommunicado, (Def.
XLVI-5173:16-5174:1). On November 17, 1945, she was
transferred to Sugamo prison, where she stayed until
her release on October 25, 1946 (Def. XLVI-5175 :11-
5176:4). She continued to be held completely incommuni-
51
cado until December 25, 1945. From then until her re-
lease on October 25, 1946, she was permitted to see no
one but her husband. (Def. XLVII-5206 :4-7 ; XL Vi-
ol 76:17-5177:4). Her husband was allowed to see her
only once a month, 20 minutes at a time (Pray, XLIII-
4712:14-17; See Def. Exh. N, supra, Def. Exh. BG, XLVTI-
5196, Exh. BI, XLVII-5196; and entries of April 20, 1946,
May 15, 1946, June 11, 1946, July 4, 1946 of Exh. BJ,
XLVlI-5197; Exh. BK-XLVn-5197). She was not al-
lowed generally to communicate with the outside world
by mail. (Def. XLVI-5180 :22-5181 :3 ; cf. Def. XL VII-
5209:1-10. An excluded piece of evidence, XLVII-5209:11-
14 will be considered in another part of the brief). She
made repeated requests for a speedy trial, none of which
brought results (Def. XLVII-5207 :5-ll, 5213:4-10). She
was not allowed to see an attorney (Def. XLVII-5206 :6-7).
Moreover^ the United States Government lost evidence
which was material to the case and probably favorable to
the defendant. When defendant was first arrested in
Japan, Robert Cowan and Jack Kaduson, then in the U.
S. Army and acting under orders, used some of the de-
fendant's scripts for the purpose of making a movie
under Army auspices. (Cowan, XXVI-2810 :12-24, 2811 :4-
7, 2827:5-2828:4, 2828:15-24). These scripts were lost
while they were in the possession of the Army and the
U. S. Attorney was not able to produce them at the trial,
(Statements of prosecutor DeWolfe, XXVI-2999 :4-19,
3000:6-3001-1). Besides these, we have already men-
tioned the missing Hawaiian transcripts (supra, i)p. 22-3,
Roth).
52 '
1. FACTS DENIED SPEEDY TRIAL IN VIOLATION OF
THE SIXTH AMENDMENT.
U. 8. V. McWilliams, 163 F. (2d) 695, 696, col. 2, (App.
D.C.) treats the defense of a denial of a speedy trial very
much like the defense of laches in equity cases. In that
case delay in retrying a case after a mistrial, involving
assumed loss of evidence was held to prevent an ultimate
retrial.
The present case is much stronger: there is evidence
of actual loss of evidence, and through the apparent negli-
gence of Government agents. This comes as a climax to
a year's incarceration in which defendant was held partly
incommunicado. The incarceration was on '* suspicion of
treason '*: both it and the added limitations on defendant's
opportunities to contact the outside world necessarily im-
paired her opportunity to gather and preserve evidence
against an actual treason charge such as later developed.
Since all extant scripts are favorable to the defendant, it
may be inferred that others which she gave Cowan and
Kaduson were no less so.
Where delay, a year's imprisonment of defendant, inter-
ference with her opportunity to communicate and loss of
probably favorable evidence by Government agents are
all combined, the situation certainly is one where the
Government has denied defendant a speedy trial within
the meaning of the Vlth Amendment. Such denial is a
bar to the present prosecution,
2. ALTERNATIVELY IMPRISONMENT AND RELEASE PUT DEFEND-
ANT ONCE IN JEOPARDY OR ARE RES JUDICATA.
Defendant was arested on suspicion of treason (Exh. P)
and was punished by imprisonment for one solid year and
53
then was released unconditionally. (Phil d 'Aquino XLIII-
4812:17-24; Defendant, XLVI-5176:7-11.) Inasmuch as
this imprisonment and release amount to the bringing and
dismissal of charges, they constitute former jeopardy or
res judicata.
3. ALTERNATIVELY, PROSECUTION ATTER KNOWN LOSS OF
EVIDENCE DENIES DUE PROCESS GUARANTEED BY FITTH
AMENDMENT.
Apart from its aspects under Amendment VI, prosecu-
tion after known loss of evidence was a denial of due
process under Amendment V.
The Government pressed the prosecution with full knowl-
edge that relevant and highly material evidence had be-
come lost, and lost by its own agents. This applies both
to the scripts taken by Cowan and Kaduson, and to the
Hawaiian records which were either destroyed or sup-
pressed. (See Roth, LII-5849, 5855, 5866-7, 5870, supra.)
We have above shown why the scripts and records were
probably in defendant's favor. The Government, having
had possession of them, must be charged with knowledge
of their contents. Despite these circumstances it not only
pressed the prosecution knowing that evidence probably
favorable to the defendant had become unobtainable
through its own acts. Further, it attempted to give the
defense, the Court and the jury the false impression that
the only reason why it did not produce more scripts was
that the Japanese had destroyed the others. (See pp.
22-3, supra.)
Mooney v, Holohan, 294 U.S. 103 held that it is a
denial of due process for the state knowingly to prosecute
a case upon perjured evidence. We contend that the same
54
is true where the Government knowingly prosecutes upon
incomplete evidence where (a) there is good reason to
believe that the missing evidence is favorable to the
defendant, (b) the evidence has become unavailable be-
cause of the Government's own acts, whether of routine
destruction, negligent loss, or intentional suppression. In
the present case these circumstances are aggravated by a
third one, that (c) the Government sought to give the
false impression that the missing records were unavail-
able solely for reasons other than its own acts or default.
4. SUMMARY.
In this case defendant was imprisoned for a year on
^* suspicion of treason". She was denied counsel and held
wholly or partly incommunicado. All these things neces-
sarily interfered with her opportunity to gather and pre-
serve evidence for defense against an eventual treason
charge.
Relevant and probably favorable evidence was lost,
suppressed or destroyed by government agents between
the beginning of her imprisonment and her trial. To pro-
ceed with the prosecution after that, either denies a speedy
trial under Amendment VI or denies due process under
Amendment V.
C. DEFENDANT'S AID TO ALLIED WAR PRISONERS CREATES
A REASONABLE DOUBT OF GUILT AS A MATTER OF LAW
AND MAKES EVIDENCE INSUFFICIENT TO CONVICT.
We have shown in our statement of facts that witnesses
on both sides testified without contradiction that defend-
ant gave aid and comfort to Allied prisoners of war in
55
Japan from November 1943, to the end of hostilities. That
aid and comfort was given not only to those Allied prison-
ers who were regularly broadcasting under duress at
Radio Tokyo, but to all those Allied prisoners who were
imprisoned and held under duress by the Japanese at
Camp Bunka. (See references in statement of facts, supra,
pp. 15, 32.)
As this evidence comes from both sides and is uncontra-
dicted, it raises a question of law. It is a piece of affirma-
tive evidence which militates against the whole of the
Government's case. We contend that it must be treated
just like evidence in a civil case which defeats the plain-
tiff, as e.g., evidence of contributory negligence in a neg-
ligence case.
Defendant's position is that the presence of this uncon-
tradicted evidence of aid and comfort to allied prisoners
makes the government's case insufficient as a matter of
law.
1. GENERAL RUIiE AS TO SUFFICIENCY OF EVIDENCE.
The present rule as to sufficiency of evidence has been
stated in Cnrley v. U. S,, 160 F. (2d) 229, 232 (A pp. D.C.) :
**The true rule, therefore, is that a trial judge, in
passing upon a motion for directed verdict of acquit-
tal, must determine whether upon the evidence, giving
full play to the right of the jury to determine credi-
bility, weigh the evidence, and draw justifiable infer-
ences of fact, a reasonable mind might fairly conclude
guilt beyond a reasonable doubt. // he concludes that
upon the evidence there must be such a doubt in a
reasonable mind, he must grant the motion; or to
state it another way, if there is no evidence upon
which a reasonable mind might fairly conclude guilt
56
beyond a reasonable doubt, the motion must be
granted. If he concludes that either of the two results,
a reasonable doubt or no reasonable doubt, is fairly
possible, he must let the jury decide the matter.''
This holding makes two points: (1) the question whether
the record as a whole necessarily leaves a reasonable doubt
is a question of law; (2) no more than a reasonable doubt
is needed to entitle the defendant to a judgment of ac-
quittal by the Court.
2. DEFENSIVE EVIDENCE NEED ONLY RAISE
REASONABLE DOUBT.
The rule is the same for affirmative defensive matter as
it is for gaps in the prosecution's case: it need only be
sufficient to raise a reasonable doubt. If, taking all the
evidence, there is indisputably a reasonable doubt on one
essential issue, the evidence is insufficient. See the follow-
ing cases : Davis v. U. S,, 160 U.S. 469, 484, 488 (insanity) ;
C7. S, V. Marcus, 166 Fed. (2d) 497, 504 (alibi) ; Holloway
V, U, S., 148 Fed. (2d) 665, 666 (insanity) ; Reavis v. U. S.,
93 Fed. (2d) 307, 308 (alibi); Falgout v. U, S., 279 Fed.
513, 515 (alibi) ; McCool v, U, S., 263 Fed. 55, 57-8 (alibi) ;
compare also Morei v, U, S., 127 Fed. (2d) 827, 834-5 (en-
trapment).
3. AID TO ALLIED PRISONERS RAISES REASONABLE DOUBT
AS TO TREASONABLE INTENT.
The prosecution must prove as one element of treason,
not only intent to do the act charged, but intent thereby
to betray the United States, Cramer v. U, S., 325 U.S. 1,
31,
57
*'But to make treason the defendant not only must
intend the act, but he must intend to betray his
country by means of the act.''
The fact that defendant continuously gave aid to Allied
prisoners of war certainly raises a reasonable doubt as to
whether she intended to betray the United States by any
other act which she may have done. Since the evidence
upon this point was given by witnesses on both sides and
is wholly uncontradicted, we submit that it raises a point
of law. The point is that the proof on the issue of intent is
legally insufficient. Because the evidence of intent is insuffi-
cient, the chain of proof is broken and the evidence is
insufficient on the whole case. Since the insufficiency arises
not from lack of proof but from the existence of contrary
facts, it could not be cured on a new trial. The judgment
should be reversed with directions to grant defendant's
motion for judgment of acquittal.
Note: errors in rulings on evidence on this topic are
discussed in a later part of this brief.
D. THE DISTRICT COURT WAS WITHOUT JURISDICTION.
1. INTRODUCTION.
Sec. 18 U.S.C. 3238 provides—
"The trial of all offenses committed upon the high
seas or elsewhere, out of the jurisdiction of any par-
ticular State or district, shall be in the district where
the offender is found, or into which he is first
brought/^
It is settled that the Federal Courts are Courts of lim-
ited jurisdiction, having only such jurisdiction as is con-
ferred by statute. {U. S, ?;. Hudson, 11 U.S. 32, 33, Little
58
York Gold Washing S Water Co. v. Keyes, 96 U.S. 199,
201; Fink v. O'^il, 106 U.S. 272, 280, quoting Gary v,
Curtis, 44 U.S. 236, 245.)
So far as 18 U.S.C. 3238 determines the place of trial
as between different District Courts, it may be said to
regulate venue. To the extent, however, that it requires
that there must be some District Court which satisfies its
terms, its provisions are jurisdictional. If there is no
District Court, which fits the language of the statute, then
no District Court has jurisdiction to try the alleged of-
fense. Compare the principle set forth in U, S. v. Johnson,
323 U.S. 273, 276,
''Questions of venue in criminal cases, therefore,
are not merely matters of formal legal procedure.
They raise deep issues of public policy in the light of
which legislation must be construed.^'
Compare also Johnson v, Eisentrager, 94 L.Ed. Adv.
Ops. 814, 830, par. V.
Defendant's position is that the phrase ''first brought''
in 18 U.S.C. 3238 means "legally brought". Since the
"bringing" of defendant to the United States was accom-
plished by using the Army as a posse comitatus, and
therefore constituted a felony, she was never "brought"
A\dthin the meaning of the statute. There is, therefore, no
District Court which was authorized to try her. Defendant
raised this issue by grounds 13, 14 and 15 of the second
motion to dismiss the indictment (E. 86, 91) and by two
requests for instructions: Nos. 156 (B. 297-8) and 38
(R. 292). They respectively set forth part of the text of
10 U.S.C. 15, and state "the words 'first brought' . . .
mean brought under lawful custody".
59
Section 10 U.S.C. 15 prohibits using the Army as a posse
comitatus (except in Alaska) under penalty up to $10,000
fine and 2 years imprisonment.
2. DEFENDANT WAS BROUGHT TO THE UNITED STATES FEOM
JAPAN IN CUSTODY OF THE ARMY AS A POSSE COMITATUS.
The Government proved as part of its own case that the
defendant was brought to San Francisco on an Army
transport and under Army guard. See testimony of Capt,
Van Eycken, 11-118-24, the master of the Army transport
which took the defendant from Japan to San Francisco;
Capt, Prosnak, 11-131-45 and WAC Maj. Shdl, 11-145-49,
both of the United States Army, who had defendant in
their custody.
The official government documents introduced as defend-
ant's exhibits, established the fact beyond question that
the Army was acting on behalf of the Department of
Justice.
The Army warrant of arrest (Def. Ex. BO, XLVII-5227)
recites that the arrest is ordered,
^^Upon complaint and sufficient information made
to me by the Department of Justice, United States
Government, as contained in Radio WCL 20431, from
the Adjutant General, Department of the Army, dated
25 August 1948, the person described in paragraph 1
above is suspected of having committed the following
crime :
''Treasonable conduct against the United States
Government during World War II.''
(We mention the arrest to show that everything was
(lone ill the behest of the Justice Department. The im-
portant element, however, is the transportation — the
''bringing".)
60
The travel orders to Ca2)t. Van Eycken (Def. Ex. F,
III-166) state that agents of the Federal Bureau of In-
vestigation will come aboard the transport and take de-
fendant into custody upon arrival in San Francisco.
Defendant's Exhibit G (III-166) is a receipt for de-
fendant to the Army from the Department of Justice.
The travel orders to Capt. Prosnak (Def. Ex. D, III-
166), to Maj. 8 lull (Def. Ex. C, 11-150) and to the defend-
ant herself (Def. Ex. E, III-166), all contain the following
provisions (with inunaterial verbal variations) :
''Upon arrival at San Francisco Port of Debarka-
tion, Mrs. d 'Aquino will be met by and placed in
custody of proper civil authorities. Department of
Justice will reimburse the Department of the Army
for all expenses incident to this traveV
This proves Departmental authorization.
3. GOVEBNMENT CANNOT ESTABLISH JURISDICTION OF DIS-
TRICT COURT BY SHOWING ITS OWN VIOLATION OF 10 U.S.C.
15.
a. The foregoing facts establish a clear violation of 10
U.S.C. 15 by the authorized agents of the United States.
The Government cannot establish jurisdiction of the
United States District Court by proving that its own
agents committed (and were authorized to commit) a
felony. This is upon the principle stated in cases like
McNahh V. U. S., 318 U.S. 332; U pshaw v. U. S., 335
U.S. 410 and Weeks v. U. S,, 232 U.S. 383, all holding
in various settings, that the government cannot profit by
its own wrong. Compare the following from the McNahh
case, 318 U.S. 332, 345,
61
** Plainly a conviction resting on evidence secured
through such a flagrant disregard of the procedure
which Congress has commanded cannot be allowed to
stand without makincf the courts themselves accom-
plices in ivilful disobedience of law/^
and the language from Upshaw v. U. S., 335 U.S. 410, 414,
*'Thus the arresting officer in effect conceded that
the confessions here were 'the fruits of wrongdoing'
by the police officers. ''
This language refers to the phrase in U. S. v. Mitchell,
322 U.S. 65, 70 — ''use by the Government of the fruits of
wrongdoing by its officers' \
The principle goes beyond the minimum requirements
of the Constitution. (McNabb v. U. S., 318 U.S. 332, 340;
Upshaw v. U. S., 335 U.S. 410, 414 N.2.)
An application of that principle to the present case
obviously forbids the government from establishing juris-
diction, and venue by proof of the felonious acts of its own
authorized agents.
The foregoing would seem obvious, but was rejected in
Chandler v, U. S., 171 F. (2d) 921 (C.A. 1) and Gillars v,
U. S,, C.A. D.C. No. 10187, decided May 19, 1950, 182 F.
(2d) 962. The conclusions in both cases result from a
misapplication of existing authorities.
(1) Both cases say that 10 U.S.C. 15 was passed for
purposes of post-Civil war reconstruction, and imply, but
do not hold that it has no other function.
(2) Both cases rely on decisions like Pettibone v.
Nichols, 203 U.S. 192 and Mahon v. Justice, 127 U.S. 700.
These authorities are demonstrably inapplicable to the
62
present case whether they were in point on Chandler and
Gillars or not.
(3) Chandler v. U. S., 171 F. (2d) 921, 935, says that
10 U.S.C. 15 has no ^'extraterritorial" effect and suggests
that in any event, it would be impossible to convict the
soldiers who acted as deputy marshals.
(4) Gillars v. U. S., says that constitutional guarantees
do not extend to conquered territory, expressly withhold-
ing decision as to whether the statute had ''extraterri-
torial" effect. It also adds "There is no contention made
that fruits of an alleged illegal arrest were used in obtain-
ing appellant's conviction. Cf. McNabb v. United States,
318 U.S. 322 (1942)".
b. These objections are either not well taken, or inap-
plicable to the present case.
(1) 10 U.S.C. 15 extends to matters unconnected with the Civil
War.
10 U.S.C. 15 was amended in 1900 (31 U.S. Stats, at L.
330). This shows that it was intended to have prospective
operation on matters not connected with Civil War recon-
struction.
Likewise the express exception of Alaska shows that
the statute was not limited generally to the ex-seceded
states. The statute must therefore be treated as one of
current application.
(2) Cases like Pettibone v. Nichols, 203 U.S. 192, and Mahon v.
Justice, 127 U.S. 700, are not in point.
Of the long list of cases cited in Chandler v. U. S., 171
F. (2d) 921, 934, and the shorter list cited in Gillars v.
U. S., slip opinion p. 10, all are easily distinguishable.
63
They fall into three classes (some overlapping) : (1) the
state cases — which involve only the question whether there
has been a violation of constitutional rights relating to
states; (2) cases in which an illegal arrest or transporta-
tion was claimed to defeat jurisdiction which existed in-
dependently of the transportation; (3) cases in which the
illegal bringing is done by unauthorized persons.
In no case does the evidence show what appears here,
viz.: authorized commission of a felony by agents of the
same sovereign which seeks to take advantage of the
defendant's transportation within its borders. Nor did
any arise under a statute which makes '' bringing ^^ an ele-
ment of jurisdiction or venue.
The following are the authorities cited in Chandler v.
U. S., 171 F. (2d) 921, 934 (no others are cited in the
Gillars opinion).
Pettibone v. Nichols, 203 U.S. 192. The petitioner had
been kidnapped across the state line from Colorado to
Idaho, and was held by Idaho authorities for trial in
Idaho State Courts. This obviously involved only the
question whether the United States Constitution had been
violated — not the application of a federal statute to trials
in the federal courts.
In re Johnson, 167 U.S. 120, was not even a case of
transporting the defendant into a .jurisdiction for trial. This
is emphasized at 167 U.S. 120, 127. A statute created a
new District Court for Indian Territory (Oklahoma) but
granted it jurisdiction only in no^icapital cases. The juris-
diction was later enlarged to include capital cases. Before
the latter amendment, the marshal for the Indian Terri-
64
tory Court arrested the petitioner for murder. The trial
was held after the enlargement of the Court's jurisdiction.
Held: that the trial Court had jurisdiction over defend-
ant even though the original arrest may have exceeded the
marshal's then jurisdiction. ■
Cooh V. Hart, 146 U.S. 183. This was a case of transfer
from Illinois to Wisconsin for trial in the Wisconsin state
Courts. It therefore involves only constitutional questions
between states and not the application of federal statutes
to federal trials.
Mahon v. Justice, 127 U.S. 700, was a case of taking a
prisoner from West Virginia to Kentucky for trial in
Kentucky state Courts. The proceeding was brought by
the Governor of West Virginia, not by the prisoner. The
case again involves only constitutional issues as between
states. Moreover, those who kidnapped the prisoner from
West Virginia to Kentucky were held to have acted with-
out authority (pp. 705-6) : f
^*It is true that Phillips was appointed by the Gov-
ernor of Kentucky as agent of the State to receive
Mahon upon his surrender on the requisition; but no
surrender having been made, the arrest of Mahon and
his abduction from the state were lawless and inde-
fensible acts, for which Phillips and his aids may
justly be punished under the laws of West Virginia.
The process emanating from the Governor of Ken-
tucky furnished no ground for charging any com-
plicity on the part of that State in the wrong done to
the State of West Virginia."
Ker V. Illinois, 119 U.S. 436, is by its title, another case ,
involving a state prosecution. The United States Supreme I
65
Court, of course, can pass only on constitutional limita-
tions on the state.
The foregoing review shows that there are no United
States Supreme Court cases dealing with the right of the
United States District Courts to try a prisoner who has
been brought into the country by the authorized felonious
acts of Government agents.
The lower Federal Court cases cited in Chandler v.
U. S., 171 F. (2d) 921, 934, do not arise under 18 U.S.C.
3238 (or its predecessor section).
McMahon v. Hunter, 150 F. (2d) 498, merely holds that
the manner in which the Court obtained jurisdiction is not
open to review on habeas corpus (150 F. (2d) 498, 499).
In the present case we are raising the point on direct
appeal.
U. S. ex rel. Voight v. Toombs, 67 F. (2d) 744, did not
involve 18 U.S.C. 3238. The defendant was arrested in the
continental United States without a warrant, brought into
the proper federal district, and there served with a war-
rant. It does not appear what statute determined the
jurisdiction of or venue in a particular federal District
Court. Presumably venue was determined by the place
where some or all of the crime was committed. (See 18
U.S.C. ch. 211, and Rule Crim. Proc. 18.) The present case
is different: the act of ''bringing'' is what confers juris-
diction on the United States courts. Voight v. Toombs
merely holds that where jurisdiction otherwise exists, it is
not defeated by an illegal arrest. In the present case, on
the other hand, the question is whether the felonious
transportation may be used to establish jurisdiction. Under
66
the principle of the McNahh and TJpshaw cases, supra, it
certainly cannot be so used.
Whitney v. Zerbst, 62 F. (2d) 970, is another case where
the proper District Court was fixed by the place of com-
mission of the crime rather than the transportation itself.
As we have said, this and other cases hold that where
jurisdiction and venue exist on other grounds, illegal trans-
portation does not defeat them. But where the transpor-
tation itself confers jurisdiction and fixes venue the trans-
portation must have been legal ; it does not stand to reason
that the government can prove an essential link in its case
by showing its own felony.
In U. S. V. Unverzagt, 299 F. 1015, the defendant had
been kidnapped from British Columbia into the United
States, then legally arrested in the United States. Held:
the kidnapping in Canada could be raised only by the
Canadian Government; it did not invalidate the jurisdic-
tion of the proper United States District Court, which
depended on where the crime was committed. In the
present case, however, the transportation itself fixes juris-
diction and venue (18 U.S.C. 3238).
In seeking to establish jurisdiction in its owti Courts,
the United States Government must at least not have com-
mitted a felony. In Ex parte Lamar, 274 F. 160, the de-
fendant was removed from Atlanta penitentiary to New
York for trial. It was held that even if the removal was
illegal, the New York District Court could try him. Here
again the transportation was raised by the defendant to
defeat jurisdiction, not by the government to establish
jurisdiction.
67
Stamphill v. Johnson, 136 F. (2d) 291, 292, and Sheeha/n
V. Huff, 142 F. (2d) 81, are to the same efPect.
A review of the above authorities leaves our original
position intact. Under 18 U.S.C. 3238, the Government
must show ''the district * * * into which [the defendant]
is first brought '\ This it recognized and proceeded to do.
But its own proof showed that the ''bringing'' of defend-
ant was illegal — that it constituted a felony under 10
U.S.C. 15. Where the Government insists that it has thus
established jurisdiction in the San Francisco District
Court we have a plain case of ''use by the Government of
the fruits of wrongdoing by its officers^'. The principles
underlying McNabb v. U. S., 318 U.S. 332 and Upshaw v,
U. 8., 335 U.S. 410, also demand that the present convic-
tion be reversed, with directions to the District Court to
quash the indictment. (C7. S. v. Johnson, 323 U.S. 273.)
(3) -(4) 10 U.S.C. 15 applies though the indictment charges acts
commited in Japan.
On varying grounds, both Chandler v. U. S,, 171 F.
(2d) 921, 936 and Gillars v. U. S. slip opinion p. 10, hold
that 10 U.S.C. 15 does not apply to the present prosecu-
tion for acts done in Japan.
The "reasoning" of Gillars v. U. S. is wholly beside the
point and need not detain us long. It quotes Dooley v.
U. S., 182 U.S. 222, to the effect that a conquering nation
has the power to establish laws for conquered territory
which are different from its domestic laws. It also says
that the use of the Army of Occupation in Germany to
make an arrest cannot "be characterized as a 'posse
comitatus' since it was the law enforcement agent in
68
Germany at the time of appellant's arrest''. Obviously it
is beside the point that the conquering state has the power
to make laws for conquered territory different from its
own domestic laws. The question is not whether it has
the power but whether it has done so here — particularly
with respect to general domestic laws (18 U.S.C. 1) which
it is still trying to enforce against its own citizens. The
question before the Court is whether, as a matter of statu-
tory construction, 10 U.S.C. 15 applies to one in appel-
lant's position — not whether Congress has powder to abro-
gate the section. And the mere fact that the United
States had the power to make laws for occupied Germany,
does not make it follow automatically (as the District of
Columbia Court of Appeals seems to think, slip opinion
p. 10, last paragraph) that 10 U.S.C. 15 is necessarily
inapplicable. Moreover, the specific objection in the pres-
ent case is not that defendant was arrested by the Army
but that she was brought by the Army. Her custody in
transit is independent of the type of government that
happens to be governing occupied Japan.
Chandler v. U. S,, 171 F. (2d) 921, 936, says
'^In contrast to the criminal statute denouncing the
crime of treason, this is the type of criminal statute
which is properly presumed to have no extraterri-
torial application in the absence of statutory language
indicating a contrary intent".
U. S. V. Bowman^ 260 U.S. 94, is the only case cited,
and, we submit, it holds the other way.
Before reaching general principles discussed in the
Bowman case, however, we first have the special circum-
stance that 10 U.S.C. 15 is expressly made inapplicable
69
to Alaska. This shows that it otherwise extends beyond
the continental United States. If Congress had intended
it to be generally limited to the continental United States
it would not specially have excluded Alaska from its
operation.
The only question is — hoiv far is it applicable beyond
the continental United States!
U. S. V. Bowman, 260 U.S. 94 lays down the principles
first, that the question involved is one of statutory con-
struction (260 U.S. 94, 97), second, that the Court must
look to the nature of the statute to determine whether or
not it is probably intended to operate beyond the conti-
nental United States. (260 U.S. 94, 97-8.)
10 U.S.C. 15 is a statute governing United States mar-
shals— i.e., one of the auxiliary branches of law enforce-
ment. It particularly excepts Alaska, but makes no other
exception. At all times since its passage, the United
States has had some criminal statutes with exterritorial
operation. 18 U.S.C. 1 is one; the statute considered in
U. S. V. Bowman, 260 U.S. 94 is another.
Since 10 U.S.C. 15 makes only the exception of Alaska,
and makes no other distinction between the enforcement
of statutes having only local and those having exterri-
torial operation, the reasonable view is that it is intended
to apply to all crimes alike.
Furthermore, the process of bringing a defendant into
the United States is well known in connection with extra-
dition. The persons sent to receive the defendant from
the asylmii power are vested with all the authority of
United States marshals. (18 U.S.C. 3193.) It is certainly
70
reasonable to hold that 10 U.S.C. 15 applies to this pro-
cedure and forbids delegating such work to the Army.
And if 10 U.S.C. 15 applies to receiving fugitives from
justice, it must be equally applicable to the enforcement
of statutes (like 18 U.S.C. 1) having exterritorial effect.
Chandler v. U. S,, 171 F. (2d) 921, 936, also makes the
point that
** Particularly, it would be unwarranted to assume
that such a statute was intended to be applicable
to occupied enemy territory, where the military power
is in control and Congress has not set up a civil
regime' \
The italicized words show a basic confusion of thought.
The statement that ^'Congress has not set up a civil
regime'' refers to the local government of occupied terri-
tory. But the present case is not concerned with infrac-
tion of any regulation of the military government of
Japan — it involves alleged violation of a general domestic
Act of Congress — 18 U.S.C. 1. That is precisely an area
where Congress has *'set up a civil regime". The only
basis for not applying 10 U.S.C. 15 is to say that Con-
gress intended one procedure for criminal statutes limited
to the continental United States and a different procedure
for statutes also having exterritorial operation — a view
for which there is no support whatever.
All this applies with special force to the transportation
of defendant across the Pacific, by which defendant was
'^brought''. That clearly has nothing to do with the mili-
tary Government of Japan and should not have been done
through the Army. An analogy is provided by the pro-
visions of 18 U.S.C. 3183, dealing with fugitives 'Ho a
71
country in which the United States exercises extra-terri-
torial jurisdiction''. Under this section the arrest is to be
made by the local authorities, but the transportation to
the United States shall be made by the agent of the de-
manding authority. Since 10 U.S.C. 15 is qualified only
by the exception of Alaska, it certainly forbids making
the Army the agent of the demanding authority in any
such undertaking. Since the ex-territorial operation of
United States criminal laws and ex-territorial activities
of United States marshals were were known at the time
of the enactment of 10 U.S.C. 15 and ever since, the broad
language of the statute indicates it is meant to apply to
such situations as well as proceedings limited to the con-
tinental United States. Compare Scripps-Howard Radio
V. F, C. C, 316 U.S. 4, 16,
''Indirect light is sometimes cast upon legislation
by provisions dealing with the same problem in re-
lated enactments.''
Chandler v. U. S., 171 F. (2d) 921, 936, also expresses
the fear that there Avould be no other way to bring appel-
lant to trial. But the foregoing discussion answers that:
United States deputy marshals could have been sent to
Japan to take appellant to the United States. A Depart-
ment of Justice agent took her into custody in Japan in
1946. (Def. Exh. 0, XV-1586; see also Govt. Exh. 24, XIV-
1457.) The same thing could have been done in 1948.
The transportation of defendant under Army guard on
behalf of the Department of Justice was therefore a
felony. It cannot he used to establish jurisdiction of the
District Court under 18 U.S.C. 3238 'Svithout making the
Courts themselves accomplices in willful disobedience of
72
law^'. {McNahh v. U. S,, 318 U.S. 332, 345.) The indict-
ment must be quashed — (U. S, ?;. Johnson, 323 U.S. 273.)
E. SUMMARY.
The judgment should be reversed with directions to
discharge the defendant for each of the following reasons :
1. During a war in which the United States permits
naturalization to the enemy belligerent, it cannot punish
**adherence-aid-and-comforf to the enemy as treason.
2. By imprisoning the defendant for a whole year, by
interfering with her right to communicate, and by losing,
suppressing or destroying evidence which probably fa-
vored her, the Government denied her a speedy trial and
lost its right to prosecute her.
3. The uncontradicted evidence from both sides that
the defendant aided Allied prisoners of war casts reason-
able doubt upon her alleged treasonable intent, and makes
the entire evidence insufficient.
4. Since defendant was '^brought'' to the United
States in violation of 10 U.S.C. 15, this bringing cannot
be used by the Government to establish jurisdiction or
venue and no District Court has jurisdiction to try her.
II. CONTENTIONS CALLING FOR NEW TRIAL.
The record abounds in erroneous rulings on evidence,
misconduct of the United States attorney, and erroneous
giving or refusal of instructions. Not only are these
errors so numerous that their cumulative effect deprived
73
the defendant of a fair trial, but many are of such nature
that each standing alone has been held to require reversal
of a conviction.
A. THE ISSUE OF DURESS.
Much of defendant's evidence on the defence of duress
jvas excluded. The effect of admitted evidence was emas-
culated by the Court's instructions. Defendant's requested
instructions were refused in toto.
We consider the different elements of duress and the
legal errors pertaining to each.
1. DEFENDANT'S BACKGROUND SITUATION.
The circumstance which pervades all of defendant's
ictions from 1942-45 is that she was in wartime Japan,
1 native of a country at war with Japan. This is the first
'act to be kept in mind in assessin^i; her acts.
Defendant requested and the Court refused the follow-
ing instructions :
(No. 110, R. 288.) ''The natural born subject of a
belligerent country who leaves the land of his or her
birth before the war and resides within the I'ealm of
the other belligerent without becoming naturalized or
completely divested of his or her native rights is on
the outbreak of war an alien enemy of the govern-
ment under which he or she lesides. 50 Am, Jur. 188.
(No. HI, R. 288.) 'Mf you find that the defendant
was an American citizen at the time of the outbreak
of the war between the United States and Japan on
Dec. 8, 1941, and that she resided in Japan at that
time, then in Japan she had the status of an alien
enemy. Cf. Ludecke v. Watkins, 335 U.S. 160."
74
Exception to the refusal of instructions was taken at LIII-
5934-5 to Nos. 110 and HI at 5934:23. (The printed rec-
ord shows these instructions as having been refused be-
cause covered by other instructions. (R. 280, 288.) This,
we believe, was a mistake. They were refused on the
merits. In any event, no similar instruction was given.
See Instructions, LI^^5942-94. The instiuction at LIV-
5960:19-20 merely says that defendant was an alien, not
that she was an alien enemy.) The accuracy of these two
requests has since been demonstrated by the following
language in Johnson v. Eisentrager, 94 L. Ed. Adv. Ops.
814, 821 :
(See Appendix p. 10.)
This quotation shows that the requested instructions
were correct. Nothing was told the jury about defend-
ant's enemy status in Japan, if they found her to be an |
American citizen. There was therefore a failure to in-
struct on the basic nature of defendant's position during
the entire time of the acts charged against her. '
2. FACTS ADMITTED IN EVIDENCE. '
In this subdivision we summarize the evidence which
was allowed to go before the jury. Then we show what
was excluded and set forth the instructions given and i
refused. Finally we cite the authorities showing that the ]
Court's rulings were error.
The evidence on duress which was admitted into the I
record falls into five general classes:
a. Duress of persons in authority against defendant.
b. Duress of persons in authority against others than
defendant, communicated to defendant.
75
c. Duros? of porsons in authority against persons
other than defendant, not coninumicated to defendant.
d. Duress of private persons against defendant.
e. Evidence on defendant's ojiportunity to quit her
broadcasting job.
a. Duress against defendant by persons in authority.
The day after Japan started the war she received a
visit from the head of the Alien Observation Division of
the metropolitan police, was interrogated and told to take
out Japanese citizenshi]). (Def. XLTV-4931-3.) She re-
fused. Thereafter, throughout the war, she was kept
under constant surveillance and was periodically visited
by and had to report for interrogation to the metropolitan
police. (Def. XLIV-4931-2, 4954-5; XLV-4956-4960) of
the '^Tokko Tai", i.e., '^thought-control" police, XLV-
4959.) She was also under constant surveillance and
interrogated by the Kempeitai (Def. XLV-495()-7), and by
agents of the '*Tokko Tai", i.e., " thought-control" branch,
of the Kempeitai. (Def. XLV-4957-4960.) See also,
Okada, R. 773; Ghevenian, R. 368; Tillitse, R. 806-810;
i 'Aquino XLIII, 4762-4764; XLIV-4903. Her quarters
were searched by the Kempeitai. (Def. XL\'-49()5-8.) She
was required to obtain permits to move from place to
place. (Def. XLV-4960-3, Exhs. WW, XX, YY.)
Seeking to avoid constant harassment from the police
she asked Fujiwara, the head of the Alien Observation
Division of the metropolitan })olice, in the middle of De-
cember, 1941, to be interned with other allied citizens in
Tokyo but internment was denied to her. (Def. XLIV-
4933.) She repeatedly asked the authorities to intern her
76
but each request was denied. (Def. XLV-4963-4, 49G6. See
infra, page 140.)
Being in wartime Japan, defendant had no protection
from the government of the United States.
Takano was head of the business department of Radio
Tokyo. {Mitsiishio X-908:7.) He was personnel employ-
ment chief there. (Hayakawa, R. 381.) He occupied an
office superior to Mitsushio's. {Mitsushio, XI-1093:6-12.)
When defendant was transferred to her broadcasting job,
he told Mitsushio that the business department was lend-
ing her to the broadcasting department, {Mitsushio , XII-
1096:5-10.)
Takano gave the orders to the defendant in the follow-
ing form (Defendant, XLV-4985 :15-22) :
*^And I told him I did not want to be an announcer.
And he said, 'You cannot forget you are an alien
and you took this job as an alien with Radio Tokyo,
didn't your I said, ^Yes'.
^^He said, 'You have no choice. You are living in
a militaristic country. You take Army orders,' He
said 'You know what the consequences are. I donH
have to tell you that\ So I said * * * there was noth-
ing else I could say".
Defendant also testified that at the same juncture, she
had the following conversation with Mitsushio, Defendant,
XLV-4983 -.22-4984 :
''***! said, 'T do not want to be an announcer'.
''And he said, 'It is not what you want. Army or-
ders came through and Army orders are Army orders.
If you want details, go see your boss', because every-
thing in Japan — you don't move unless you took spe-
cific orders from your direct boss".
77
Defendant, XLV-4984 :1 0-1 2 :
**A11 he told me, it was by the prisoner? of war
who was pnttinc: on this entertainment j)ro^ram that
I had been chosen and snhsrqucntly ordered hy the
Army*\
Though Mitsushio gave a different version of the conver-
sation, he never directly denied this statement. {Mitsushio,
Xn-l096-1104.)
Major Tsuneishi confirmed that he had given the order
for the expanded Zero Hour. (Tsuneishi, IV-289:14-21,)
Defendant testified that she did know tlie consequences
of disobeying army orders.
Defendant, XLV-4990: 18-20:
'****! told him that Takano had stressed the
point that disobedience to Army orders would have
certain consequences, which 1 knew.'^
She elaborated on this at Xl.V-r)021 :8-25, 5022:4-6.
Again XLlX-5504:4-12:
"Mr. DeWolfe. Q. Did you at that time know
the consequences of a refusal to obey the Japanese
army order f
A. Yes.
Q. What was the consequences that you feared?
A. Well, 1 did not have too many exam])les, but I
had gotten all these stories from my cousin and Cap-
tain Ince and Major Cousens and these stories from
Norman Reyes. They were all acting under aiiny
orders at Radio Tokyo. For refusal to obey, it rvas
the last you were heard of — taken out.''
Compare also Defendant, Xl.\^l-5084:8-508r):r)— where
she soAJo Ince punched in tlie face for talking back to a
guard.
78
The same thing Avas told her when she wanted to quit
broadcasting.
Defendant, XLIX-5505 :9-5506 :7 :
(See Appendix p. 10.)
Major Tsuneishi confirmed that the army gave orders
to the Radio Tokyo personnel. He himself gave directions
to Miisnshio— {Tsuneishi, IV-277:2-4, 278:8-20.) He ^^did
not remember'' whether the defendant ever asked to be
discharged from the Zero Hour. {Tsuneishi, VI-430:12-14.)
Defendant was even afraid to dance for fear of being
run in by the Kempei-tai. (Hayakawa, R. o85.) (Social
dancing was an American custom and therefore frowned
on in wartime Japan. See Yanagi, R. 424.)
In addition to verbal threats in case of disobedience,
defendant was subject to continuous harassment and i
surveillance from the police.
Nii was stationed as censor right in her studio to see
that her broadcasts were acceptable to the Japanese mili-
tary. {Nii, XXV-2677; 24-2678:2, 2703:21-2704:17.) She
was compelled to report regularly to the police and had
to get travel permits even to commute from her home in
a Tokyo suburb (Karuizawa) to her work in Tokyo. (Phil
d 'Aquino, XLIIl-4762 :21.4763 :13, 4763:20-4764:7; Defend-
ant, XLV-4956 :17-4957 :4— she had to leave her uncle's
house because the police bothered them so much, 4957:9-
4958-18 — she had to report as often as twice a week. See
Defendant's Exhibits QQ, XLIV-4848, permit to stay in
Japan; RR, XLIV-4848, permit for residence; SS, XLIV-
4919, certificate of identity; Exh. VV, XLIV-4951, cer-
tificate of employment; WW, XLV-4961, permit for jour-
79
ney; XX, XLV-4961, perm it for fixed journey; YY, XLV-
4961, permit to stay in Japan.)
The defendant testified she did not broadcast because
of threats of physical duress (Def., XLIX-5502; 5504;
XLVIII-5333-4) but because of fear (Def., XLVII-5289),
mental torture. (Def., XLVII-5290.) She feared for her
life to disobey the army order because the consequences
of disobedience were known to her. (Def., XLV-5021-2;
XLIX-5503-5506.)
b. Duress on others by persons in authority — communicated to
defendant.
Takano's statement to defendant, — ''You know what
the consequences are T do not have to tell you thaf —
encompasses everything which had been reported to her
about the consequence of disobeying military orders.
From time to time, the prisoners of war at Radio
Tokyo gave her graphic pictures of these consequences.
(See Appendix p. 11.)
Cousens, XXVIII-3162:20-3169:7, told defendant how ho
had come to broadcast on Radio Tokyo, which included an
account of the atrocities practiced on the prisoners of war
— (3165:6-7) ''the men were being starved and beaten and
tortured'' (3167:5-10):
"That one of our Australian boys had been beaten to
death with a club, and that — for stealing a can of
onions, and that a Tamil coolie who had rushed in
mad with hunger, apparently, rushed in and tried to
smash [ snatch f J some food out of the arms of a
Japanese piivate soldier, had been beaten and put
to death with the water torture."
80
The official word was that prisoners of war had no
rights and would obey oi-ders on penalty of death. (XXIX-
3235:21-3236:8.)
Cousens also related indey)endently the experiences
which he passed on to the defendant. After his capture
at Singapore he was first placed in solitary confinement.
(XXVIII-3111 :2-8.) A Japanese officer told him they
could make him do anything they wanted. (XXVITI-3113:
1-3.) Later he saw the Kempei-tai guards murder two of
the prisoners in cold blood — each for trying to snatch a
can of food. (XXVIII-3116:9-3119:24.) The witness de-
scribes the water torture at 3118:2-15, the fatal beating
of the other prisoner at 3119:1-10. Japanese officers told
the prisoners that they had no rights and would be shot
for disobedience (XXVIII-3122:10-18; to the same effect,
XXIX.3236.)
When Major Tsuneishi originally ordered Cousens to
broadcast he informed him that the penalty for dis-
obedience of Japanese army orders was death. (Cousens,
XXVIII-31 46:8-15.) (The contents of a second conversa-
tion were excluded, and will be considered, infra, XXVIII-
3154-5.) Tsuneishi admitted he had said he ordered
Cousens to broadcast. {Tsuneishi, ¥-366:23-367:10.) When
Mitsushio told Cousens the Zero Hour was to be ex-
panded, he made a hand motion to indicate decapitation,
saying '*it's my neck as well as yours '^ (Cousens,
XXVin-3179 :22-5, 3180:23-3181:9.) Mitsushio denied this
{Mitsushio, XII-1110:22-5) but Reyes testified to the same
phrase. (Reyes, XXXII-3598:ll-22.)
Cousens also related that when defendant told him
about the conversation at which Takano ordered her to
81
broadcast, she reported that Takano told her the old
familiar phrase that we have been told that she vms a
foreigner, that she had no rights, and that she had to
obey." (XXVIII.31 84:21-24.)
Ince testified to experiences similar to those of Cousens
— Tsuneishi, through an interpreter told them they had
to obey orders ^^or else". (Ince, XXXI-3463 :5-l 1 , 3521 :9-
12); see also Henshaw. (XXXVTT-41 65:1 0-41 66:1.)
Reyes told the defendant that he had received two direct
threats against his life before he began broadcasting for
Radio Tokyo — that it was a choice between broadcasting
and decapitation; tw^o of his co-workers in the Manila
underground I'adio had been beaten to death; he had seen
Japanese soldiers bayoneting civilians for hiding food;
other civilians machine-gimned ; and how he had seen
Major Tnce beaten (Reyes, XXXII-3665-75) : Mitsushio
threatened him with starvation if he did not continue to
broadcast after the Philippine ^* liberation" in November,
1943. (Reyes, XXXII-3680:18-3681:7.) Tsuneishi, in re-
ferring to this subject, merely said *^he did not believe"
he had told Reyes his ''life would not be guaranteed" if
he did not broadcast. {Tsuneishi, V-322:18-21.)
c. Duress on others by persons in authority — not communicated
to defendant.
The record contains some evidence of the duress prac-
ticed on the Allied prisoners at Camp Bunka. Schenk
states that the Bunka prisoners were ordered to broad-
cast under threat of death (Schenk, R. 471-2.) Henshaw
broadcast under duress (Henshmv, XXXVll-4155 :21-23.)
A prisoner named John TuniclifTe was kept in solitai\
confinement. (Parkyns, XXXVII-4199:11-17.) C^apt. Kalb-
82
fleisch broadcast under dureSvS. (Kalbfleisch, XXXVII-
4278:19-4279:3.) Ince gave a thumbnail sketch of what he
and his comrades experienced at Bunka. (Ince, XXXI-
3567-71.) Ruth Hayakawa, working at Radio Tokyo was
questioned by the Kempei-tai (Hayakawa, R. 384 ft.),
she was afraid to talk to Nii, believing that he was a spy.
(Hayakawa, R. 385, 394.) Foumy Saisho was being
watched almost daily by a Kempei-tai agent. (Saisho, R.
406.) (These occurrences at the radio station are clas-
sified as '*not communicated to defendant" because there
is no direct evidence that they were comunicated; but it
stands to reason that defendant should have heard about
such goings on.)
Furthermore, many of the Government witnesses, while
denying all duress on direct examination, admitted on
cross that they had variously been imprisoned, threatened
with starvation, or at the very least, shadowed by the
Kempei-tai. See :
A^aA;ami*rfl^—XXII-231 9:10-2320:19 (kept under constant
Kempei-tai surveillance, which was true generally of for-
eign nationals).
Mori^ama— XXIV-2588 :24-2589 :6 (assets partly seized,
so he could not support his family).
Sugiyama--XXlY-2^i)l :22-2502 :2, 2520 :12-2521 :21 (ar-
rested by thought police and imprisoned for three
months).
Hir/uchi—XXY -2783:19-23 (testified she was in fear of
Major Tsuneishi).
Fz/iarm— XXVI-2857 :19-20 (was in Bataan death
march) 2858:1-17 sent from Philippines to Japan under
threats of death.
83
d. Duress on defendant by persons not in authority.
The record in this case rounds out the picture of the
wartime mistreatment of the Nisei. Earlier cases before
the United States Supreme Court, this Court and the Dis-
trict Courts have shown how these unfortunate people
were pushed around in the United States. (Ex jmrfe Endo,
323 U.S. 283; Korematsu v. U. S., 323 U.S. 214; Hira-
bayashi v. U, S., 320 U.S. 81 ; Acheson v. Mnrakami, 176
F. (2d) 953; Takeguma v. U. S., 156 F. (2d) 437; Lshi-
kawa V. Acheson, 85 F. S. 1 ; U. S. v, Kuwahara, 56 F. S.
716.)
The evidence in the present case shows how they were
mistreated in Japan.
The Nisei were maltreated in the United States because
they were racially Japanese; they were maltreated in
Japan because they were legally and culturally American.
In addition to official oppression through police sur-
veillance and the requirement of ])olice permits for every
move, there were always threats of mob violence from the
general populace.
We have already seen how the defendant had to leave
the home of her uncle and live alone because the family
could not stand the constant visits from the ])olice. (De-
fendant, XLV-4956:22-4957:4.) As a result she was two
months without a ration card. (Defendant, XliV-4960:13-
18.) The neighbors called both defendant and her future
husband ^'spies''. (Phil d'Aquino, XLTTT-4788:10-4789:19:
Kido, R. 835.) On Christmas, 1944, the defendant was al-
most run out of her neighborhood for hariny a Christmas
tree — another American custom. (Defendant, XIA'[-514r):
6-17.) Major Tsuneishi testified on behalf of the j)]()secu-
84
tion that the Japanese authorities considered the possi-
bility of mob violence against the Allied prisoners of war.
{Tsuneishi, VI-454:17-455:5.) Okada said the same i-egard-
ing the civilian internees. (Okada, K. 785.)
e. Defendant's opportunity to quit her broadcasting job.
Some authorities on duress as a defense to criminal
charges say that the defendant must have desisted at the
earliest opportunity. In stating the facts upon this issue,
we take the evidence of both sides (rather than merely
that of the prosecution) because an important ground of
error is in the giving and refusal of instructions. A de-
fendant is entitled to instructions on his side of the case.
Driskill V. U. S., 24 F. (2d) 525, 526 (CCA. 9) ; Little v.
U, S,, 73 F. (2d) 861, 867 (CCA. 10) ; see also Weiler v,
U. S., 323 U.S. 606, 611; V. S. v. Brotherhood of Car-
penters, 330 U.S. 395.
(1) We have already called attention to defendant's
testimony that when she did try to quit she was told '^it
would be a good idea not to quit. You know the conse-
quences''. (Defendant, XLIX-5505 :9-5506:7) and to
Tsuneishi's statement that he ''could not remember"
whether defendant asked to quit. (Tsnneishi, VI-430:12-
14.) In addition, government Avitness Clark Lee testified
that when defendant was first interviewed after the sur-
render, she said it would have been suicide to disobey
orders {Clark Lee, VIII-567:15-16) and that ''you cannot
just say, 'I will quit' " (Clark Lee, VIII-569:8-9.) Defend-
ant says she told him it would have been "suicide to quit".
(Defendant, XLVI-5158:7-9.)
Besides, substantially all the money she earned from
broadcasting was used to purchase food, medicine and
85
tobacco for the POW's. (Defendant, XLV-5041-2.) We
direct attention to the fact also that had the Japanese
authorities learned she was aiding the POW's she would
not only have jeopardized her own life and that of the
POW's but also the lives of the persons from whom she
obtained those materials, and would have occasioned
serious trouble for the Danish Minister from whom she
acquired sugar (Defendant, XLV-5044), tobacco (5045)
matches and soaps (5048).
(2) Quitting the broadcasting job could be done either
legally or illegally. Defendant had no opportunity to quit
illegally, first of all, because she could not leave Japan.
She had cancelled her evacuation application on Septem-
ber 2, 1942 (Exhibit 7, 1-80)— long before she began to
broadcast (Nov. 1943) or before she was even employed
as a stenographer at Radio Tokyo (August 194.1). Five
months earlier — April 4, 1942 — the State Department had
written the memorandum which is Defendant's Exhibit A
(11-116) and which made it impossible for her to return
to the United States.
There was therefore no opportunity to leave Japan.
(3) The evidence of the close surveillance kept by the
various police forces bears directly upon defendant's op-
portunity to quit illegally and jjet remain in Japan. She
did manage to absent herself from time to time by various
subterfuges. On American holidays she would phone in
and say she was sick. (Defendant, XLIX-5449:8-l().) (Com-
pare also her testimony of feigning sickness to avoid bow-
ing to the Emperor's palace. (Defendant, XLVI-5144:15-
5145:5.) Around the time of her marriage she was absent
for about two months. Oki, her superior at Radio 'I'okyo
86
first ^'wanted to know what the score was". (Oki, X-851:
16-853:8, especially 851:24-25.) The next step was to send
defendant a postcard notifying her to return to work.
(Kido, E. 835-6; Phil d 'Aquino, XLIII-4761 :1 8-4762:9;
Defendant, XLV-5072:3-ll.)
When that brought no results an official came to her
house to order her back. (Kido, R. 836, Phil d 'Aquino,
XLIII-4762:10-16; Defendant, XLV-5072:12-25.) There-
upon she returned to work. (Phil d 'Aquino, XLTII-4762:19-
20.)
The prosecution made much of the fact that no physical
harm or other punishment had been imposed on her up to
that point, implying that therefore she could have quit
her job permanently. (Cross-examination of Defendant,
XLIX-5486 :5-23 ; cross-examination of Phil d 'Aquino,
XLIV-4858:11-4859:13.) The view of the prosecution seems
to be that if she could get away with a two months'
absence, she could get away with anything. If we concede
for purposes of argument that this is a reasonable infer-
ence (we do not think so) it certainly is not the only one.
The evidence also supports the inference that with a two
months' absence she had stretched things to the limit.
She obeyed orders when an official came to her house,
but if she had continued to disobey she would then have
suffered Japanese army discipline. Since the record sup-
ports this inference, she was entitled to instructions on
that theory.
(4) Defendant could not have quit legally. (See evi-
dence as to consequences of quitting, supra.) It is true
Major Tsuneishi testified that disobedience to orders
would mean discharge from employment on Radio Tokyo.
87
(Tsimeishi, VI-418:2-4.) But he also said that such dis-
charged employees could be conscripted by the army
wholly according to the army's convenience (TsnneAshi,
¥1-438:17-22) and that he had considered conscripting
all the Radio 1'okyo employees. {TsuneAshi, VI-438 :23-439 :
5.) In other words, any theoretical ''right" which the
defendant may have had to have her job was wholly il-
lusory. Whenever she tried to exercise it, it could be
abolished by a stroke of the pen, through a conscription
order.
(5) In short, there was ample evidence that defend-
ant had no practical chance of escape. She was entitled
to instructions accordingly.
3. MATTERS EXCLUDED FROM EVIDENCE.
AVhile some evidence of duress went to the jury, much
more was excluded. First, and most important, the Court
excluded certain evidence of duress directly on defend-
ant. Second, it excluded evidence of duress on others
which was communicated to defendant; third, it excluded
evidence of terror held over the entire staff at Radio
Tokyo, and fourth, the Court excluded nearly all evidence
of duress exercised on the prisoners at Cam]) Bunka.
Since coercion is a matter of degree (see infra) e.rcludivf/
parts of the evidence is prejudicial error.
a. b. Exclusion of duress on defendant, or on others and com-
municated to defendant.
The trial Court was quite inconsistent in its rulings.
Almost identical pieces of evidence were sometimes ad-
mitted, sometimes ruled out. An indei)endent series of
errors developed when the Court refused to receive offers
88
of proof after sustaining objections to direct examination
on defendant's behalf! Sometimes the Court wholly pre-
vented the appellant from making a record. The cross-
examination of the Government's witnesses was similarly
curtailed when defendant tried to reach the subject of
coercion.
First of all, the Court rejected considerable evidence
of duress brought home directly to the defendant. At
XLV-5023 :9-12 the defendant was asked whether she had
a ^* conversation with Captain Wallace Ince as to how he
came to be working at Radio Tokyo and was being placed
on the Zero Hour program?'' Objection was sustained to
this question on the ground that it called for hearsay,
(XLV-5023 :1 3-15.) We discuss the entire law of coercion
infra.
But two points will show now why we consider this type
of evidence admissible.
Coercion depends partly on the person's state of mind.
Shannon v, U. S., 76 F. (2d) 490, 493 says ^'coercion * * *
must be * * * of such nature as to induce a iv ell- (j rounded
apprehension of death or serious bodily injury if the act
is not done". Statements from Ince and others to defend-
ant are offered to show that she had a w ell- cj rounded
apprehension. Their admissibility is precisely covered by
this Court's language in Kasinowitz v. U. S., 181 F. (2d)
632, where it was said (p. 635) :
^*The Examiner statement was offered in evidence,
and we regard it as highly relevant on the issue of
whether the witness may have a reasonable apprehen-
sion that his answers to questions showing his knowl-
edge of such groups may incriminate him."
89
(p. 636) :
'*Here is the same error we have hefore considered.
The issue is not whether the facts exist. The issue
to be decided by the court is whether appellants had
reasonable ground for believing that the facts might
be true.''
Statements made to defendant by the prisoners of war
are offered to show that she had a reasonable ground for
believing that she would get similar treatment if she dis-
obeyed orders.
At XLV-5027:19-5029:25 the appellant was asked to
relate conversations she had had with both Cousens and
Ince concerning their mistreatment at Bunka prison.
Objections were again sustained on the ground of hearsay
and irrelevancy. (XLV-5028:13-15, 23-25; 5029:23-25.)
Cousens was asked to state the conversations in which
''he communicated to the defendant the presence of the
prisoners of war who were detained at Bunka, and the
circmnstances under which they were confined, and the
abuse and mistreatment which they were compelled to
undergo, and the fact of generalized starvation conditions
prevailing at Bunka Prison, and the great number of beat-
ings and other acts of brutality, that those facts were
communicated to the defendant at Badio Tokyo by this
witness''. (XXIX-3254:23-3255:6.) The court refused fo
permit such questions. (XXIX-3254:18-21 : 3255:9.) There
was a similar ruling at XXIX-3287 :4-8 (Cousens).
At XLV-5030:8, 16 and 5031:10, objections were sus-
tained as to defendant's own observation of the i)hysical
condition of Cousens and Ince. At XLV-5031 :1 1-5032:24
the Court sustained like objections to still anothei- con-
90
versation which defendant had with Cousens on the same
subject. At XLVI-5132-4 defendant's counsel made offers
of proof to cover this excluded evidence, as far as cir-
cumstances would permit. We were considerably handi-
capped in making a record, since the prosecutor and the
trial judge took the folowing startling position (XLVT-
5132:16-20):
*^Mr. DeWolfe. We object to any offer of proof.
The defendant already has a record, your Honor.
Mr. Collins. It isn't a question of the record, the
law requires us, if your Honor please, to make an
offer of proof.
Mr. DeWolfe. What lawf No law requires it or
allows it.
XLVI.5134:3.5
The Court. I will repeat, you will have to address
your questions to the mtness on the stand and protect
your record. The court will not accept any offer of
proof.''
The need for an offer of proof after objection sustained to
direct examination is elementary. Rule of Criminal Pro-
cedure 26; Burt v. U. S,, 139 F. (2d) 73, 75; Hawley v.
U. S., 133 F. (2d) 966, 973; Sarkisian v. U, S., 3 F. (2d)
599, 600.
At XLVI-5088:2-20; 5090:20-25; 5091:3-14, objections
were sustained to questions put to defendant along the
same lines; at XLVI-5082 :13-16 and 5083:1-25 the Court
sustained objections to parts of a conversation with David
Huga, who represented himself as a liaison man from the
army, acting under directions of Maj. Tsuneishi. (XLVl-
5081:4-6.)
91
At XLVI-5U5:21-25, 5146:9-18, and 5147:1-15, the Court
refused to lot defendant testify as to who the persons were
who ahnost ran her out of the neighborhood for having a
Christmas tree in 1944; it likewise refused to let her give
any testimony as to the activities of '^neighborhood asso-
ciations'^ which were active in wartime Japan. This latter
testimony was offered, XLV1-5146:16-18 ''To show^ the ac-
tions taken by the neighborhood associations in tlie vicinity
where the defendant lived against her because she was an
American citizen.
Okada's testimony that the neighbors yelled "spy" at
both defendant and her future husband was likewise ex-
cluded. (R. 776, 778.)
c. Exclusion of evidence of terror over entire Radio Tokyo staff.
Ruth Hayakawa was at Radio Tokyo with the defendant.
Testimony from any woman announcer at Radio Tokyo
that the entire, broadcasting staff was kept in a state of
fear is certainly relevant Avith respect to the defendant
herself. Yet the following answer in Hayakawa 's deposi-
tion was withheld from the jury as supposedly irrelevant.
(R. 394.)
(See Appendix p. 13.)
In connection with the dates in this answer, it should
be remembered that the defendant bcfian broad cdsliufi iu
November, 1943.
d. Exclusion of evidence of duress on others, not communicated
to defendant.
The Court excluded most of the evidence of the mis-
treatment of prisoners of war at Camp Bunka, both foi-
disobedience of orders and otherwise. Like the evidence
92
of atrocities which was communicated to the defendant,
this evidence was offered to show first, that she had ''a
well grounded apprehension of death or serious bodily
injury if the act is not done'^ second to show what in fact
was covered by the threat 'S^ou take army orders. Yon
know what the consequences are. I don't have to tell you
that'' (XLV-4985:20-21) ; third, it is relevant to show con-
certed plan on the part of the Japanese authorities. So far
as it is offered to show that defendant had a well grounded
apprehension, it is admissible on just the opposite
theory from the conversations describing atrocities. The
conversations are offered to prove that appellant had a
well grounded apprehension because such things were told
to her — they are not offered to prove the truth of their
contents. The uncommunicated atrocities on the other
hand are offered on the theory that the best proof that
defendant's fears were objectively well grounded is that
such things actually happened — and happened regularly,
not merely by way of exception. Here follows a list of the
instances in which the Court excluded evidence of atroci-
ties not specifically shown to have been communicated to
appellant. In each instance we first give the name of the
witness in whose testimony the ruling occurred:
Tsuneishi, V-310:7-12 — Keyes '^ bears on his back the
scars from being kicked by the Japanese'' — ruled out as
'^inunaterial".
Excluding proof of atrocities on Reyes also had a
special significance beyond the exclusion of this type of
evidence generally. For after inducing the trial judge to
hold such evidence '^immaterial" the prosecutor sneeringly
argued to the jury that Reyes was despicable because he
93
supposedly had never seen active service in the war. See
IT Arg. 335:15-16:
^^ Combat action behind a microphone for a couple
of months. What kind of business is that? A war
hero!''
And a^ain, II Arg. 336:7:
'*And Reyes, a hero behind the microphone."
In other words the prosecution first excluded the atroci-
ties against Reyes as ''immaterial" — and then argiied that
they did not exist. They argued that Reyes had never had
a more severe experience than broadcasting although they
knew the facts to he otherwise. They treated the assumed
evidence as very material in their argument to the jury,
although they had kept out the actual evidence as ''imma-
terial" when it was offered.
Tsuneishi, V-334 :24-337 :2, 3 — cross-examination as to
Tsuneishi's first interview with Cousens, excluded as *' im-
material" (some of this was reported to defendant; we
place it in the present category for the sake of sim-
plicity).
Tsuneishi, V-364 :21-366 :17 — cross-examination excluded
as to the fate of one Williams, the only prisoner who
objected when Tsuneishi ordered the Allied prisoner at
Bunka to broadcast over the Japanese Radio.
Tsuneishi, VI-401:21-25 — cross-examination excluded as
to duress on Bunka prisoners when transported from the
camp to the radio station in order to broadcast.
Oki, IX-724:11 -725:15 — cross-examination excluded on
Tsuneishi's first interview with Cousens (the i)rosecution
objected to all these (questions as ^^ immaterial. In only
94
one or two instances did they object on the ground of im-
proper cross-examination. Objections to the testimony
of the following witnesses called by the defendant was, of
course, only on the ground of immateriality).
Schenck was a Dutch lieutenant, one of the Allied
prisoners at Bunka. His deposition starts at R. 464 and
extends to R. 535. Ahnost all of his answers were ruled
inadmissihle. Be tells of the tortures which were prac-
ticed on the prisoners who were ultimately held at Bunka
(R. 465-6) ; threats of death which were coupled with
orders to broadcast (R. 468, 519) were permitted in an-
swer to only one question. All evidence of the continuous
starvation of the Bunka prisoners was excluded (R. 474-
80, 487 ff). The evidence of systematic starvation will he
discussed apain in connection with a/tiother issue — it em-
phasizes that the defendant ivas acting against the Jap-
anese Government when she took food to the prisoners.
The fact that Kalbfleisch was taken out to be executed was
likewise ruled out. (R. 479-84.) Beating of the Bunka
prisoners was excluded. (R. 481 ff.) The number of Allied
prisoners whom the Japanese forced to broadcast at
Bunka was excluded. ( R. 504 ff — at the taking of the
deposition this evidence was elicited by the government's
cross-examiner.)
Okada was a sergeant major of the Kempei-tai. He
testified about their activities from first hand knowledge.
(R. 771 ff.) The C'ourt excluded his answers about the
Kempetai organization. (R. 773 — prosecution testimony
about the organization of Radio Tokyo had previously
been admitted. See Tsuneishi, TTT-226ff. Mitsnshio, X-
898ff.) The Kempei-tai 's method of working and keeping
95
tab on foreigners was likewise ruled out. (R. 788-9.) This
evidence of the surveillance of foreifjners was highly rele-
vant on the issue whether the defendant could have quit
her broadcasting job.
The Court itself ruled out testimony as to the organiza-
tion and activities of the Kenipei-tai agents for no reason
whatever except that government witnesses had tiied to
convey the impression that they were of an innocous type
siTnilar to military policemen or the French gendarmes.
(R. 788; cf. Tsuneishi, VT-435:16-20; Tillman, XV-1535:18-
21.) Obviously the fact that the prosecution has introduced
evidence on a point does not foreclose the defense from
introducing different or contrary evidence. Rather one
object of the defendant's case is to rebut the prosecution's
witnesses.
Mrs. Kido, w^ho was the defendant's landlady testified
that her relatives and neighbors objected to her boarding
and lodging the defendant — but that testimony was not
allowed to go to the jury. (Kido, R. 832, 833.)
Cousens — w^as asked about the guards who were sta-
tioned around him when he was first told to broadcast —
but an answer was not permitted. (Question, XXVTTT-
3122:19; ruling XXVTTl-31 39:2-4— here the ruling is based
on the ordei* of proof, but the evidence was excluded at all
stages.) At XXVITI-3143:7-16 the Court ruled out testi-
mony from Cousens as to how Jai)anese guards startc^d
to beat him when he objected to broadcasting. At XXVTTl-
3154:7-3155:13, Cousens is stopy)ed fi-oni testifying what
he told on his second' interview with Tsuneishi; at
XXVTn-315() :1 ()-.')! 57 :5 he was not allowed to say whether
he broadcast voluntarily or not. (All this testimony was
96
also highly relevant on another issue — since the prosecu-
tion argued to the jury that Cousens was a collaborator
and that defendant kept company with collaborators.
II Arg. 328:20-21, 329:24-330:4, 336:5-7. Before making
this argument the prosecution had done its best to exclude
contrary evidence as '' immaterial^ ' !)
Cousens was likewise not permitted to testify about the
episode in which Capt. Kalbfleisch was taken away for exe-
cution (Cousens, XXIX-3259:25-32(31 :4) nor about the con-
dition of the prisoners in the prisoner of war hospital.
(Cousens, XXIX-32r)8:4-24.)
The Court likewise excluded Reyes' testimony as to the
restrictions on his movements when kept at the Dai Ichi
Hotel during part of the time he was broadcasting on the
Zero Hour. (Reyes, XXXII-3582 :5-23— the prosecution,
however, was allowed to try to show how *^ comfortable'*
the prisoners were at the Dai Ichi, cross-examination of
Cousens, XXX-3410:14-3412:14.) Reyes likewise was not
allowed to testify as to w^hether he could speak freely
while at the Dai Ichi (Reyes, XXXII-3585:14-20) nor as
to the food which the prisoners received there. (Reyes,
XXXII-3586:5-3588:24.) The prosecutor was sustained in
objections that the question of food at Dai Ichi was ^^im-
material" although Government \s Exhibits 45 and 46
(XXX-3416, 3417) previously introduced in evidence, dealt
with exactly that. The prosecutor and the trial judge
between them established one law of evidence for the
prosecution and an opposite one for the defense!
Just as the atrocities committed on Reyes were kept out
of Tsuneishi's cross-examination, they were excluded from
the examination of Reyes himself. (Reyes, XXXII-3670:
15-22, 3675:12-3676:3, XXXV-3956:2-15.)
97
All this was climaxed by the Court's refusal to permit
the defendant to make an offer of proof (XXXV-3957:22-
3958:6):
''Mr. Collins. If Your Honor please, since the
Court has ruled against us on the question of the ad-
missibility of certain evidence, we would like to make
an offer of proof concerning
The Court. There will be no necessity of it. The
Court has ruled and you have a record on everything
that has occurred. There is no necessity to make an
offer of proof.
Mr. Collins. Your Honor is denying us the right to
make an offer of proof on those grounds?
The Court. Let the record so show,''
As we have already pointed out, after excluding all evi-
dence of torture on Reyes, the prosecution harangued the
jury with the fraudulent argument that Reyes had never
seen anything but "combat action behind a microphone".
(IT Arg.-335:15.)
Henshaw was not permitted to testify to the beatings of
prisoners at Bunka other than Ince (Henshaw, XXXVII-
4ir)6:14-lS) nor to the removal of Kalbfleisch for execution
(Henshaw, XXXVII-41 68:22-4170:1), nor as to whether
the Kempei-tai stationed at Bunka were uniformed or in
plain clothes. Nor was the defense permitted to introduce
Exhibit W for identification (XXXVII-4184)— the orders
to the Wake Island prisoners, some of whom were later
imprisoned at Bunka and forced to broadcast over Radio
Tokyo. Exhibit W for identification reads in part as fol-
lows:
(See Appendix p. 14.)
98
This document is clearly relevant in showing that the
Japanese actually imposed the death penalty for trivial
offenses. It tends to show defendant's fears ivell grounded
that such a fate would also befall one in her position. «|j
Parkyns was likewise not permitted to tell how he came
to broadcast. (Park^yTis XXXVII-4195:12-19) nor as to the
physical condition of the men at Bunka (Parkyns,
XXXVII-4214:11-16) nor as to starvation conditions which
made them eat guinea pigs, cats and dogs. (Parkyns,
XXXVTI-421 4:1 7-4215:2; compare the excluded testimony
in Schenk's deposition, R. 478-9.)
Similar questions to Cox were ruled out (Cox, XXXVII-
4254:18-4260:22)— whether he, Ince and Kalbfleisch broad-
cast voluntarily and the circumstances of their doing so) ;
also the condition of the Bunka prisoners. (Cox, XXXVII-
4265:19-4267:21.)
The entire testimony of Captain Kalbfleisch was ex-
cluded. He was another one of the prisoners at Bunka.
The defense sought to show that he had been in the
Bataan Death March. (XXXVII-4271:9-15.) Beginning at
XXXVII-4279 :15 and going through to 4290:14 the wit-
ness was asked but not allowed to answer a series of
questions dealing with the beatings, inadequate food and
resulting physical condition of the prisoners at Bunka,
and about his ovm removal for execution. See especially
XXXVII-4282, 4284-87. The reasons why Kalbfleisch was \
taken away to be executed were likewise kept from the
jury. (XXXVII-4286:2-18.) At the close of the day, the
defense asked leave to make an offer of proof in the ab-
sence of the jury and were* told that they would have to do ;
so in the jury's presence! See XXXVII-4291:16-21:
99
'*Mr. Collins. That would have to be done, of
course, in the absence of the jury, if your Honor
please. But I think it will only take a few moments
on Monday, I am sure.
The Court. It will be in the presence of the jury.
I will hear no testimony here unless it is in the
presence of the jury.''
The Court also said that any offer of proof would have
to be made by examining the witness. (XXXVIII-4294:
5-8.)
P'or that reason the offer of proof on the next day took
the form of repeating the questions to the witness and
having objections sustained to them a second time.
(XXXVIII-4293-4302.) The Court did not permit defend-
ant's counsel to state what he expected to elicit from the
witness, ( XXXVIII-4302 :3-4303 :8. )
To a large extent the expected answers may be inferred
from the questions themselves, w^hich were intentionally
leading. Apart from that, we shall show that denial of
opportunity to make an offer of proof is per se reversible
error.
Mrs. Hagedorn was not allowed to testify to the threat
broadcast by the Japanese radio to execute all American
prisoners of war (Hagedorn, XXXIX-4332:12-4334:2) nor
was Mrs. Kanzaki allowed to describe the physical appear-
ance of the prisoners at Bunka (Kanzaki, XLI-4580:11-15).
The proffered testimony as to treatment of the I)unka
prisoners nmst be viewed in the light of the fact that in
other Japanese camps the Allied prisoners were appar-
ently treated, better. Compare the following answers by
Maj. IncG on cross-examination (XXXI-3536:9-14) :
100
^*Q. After your recollection has been refreshed, do
you still say you were poorly fed?
A. Yes, I do.
Q. According to the American standards or Jap-
anese standards?
A. According to the standards at the prison camp
where we were immediately before we were taken to
the Dai Ichi Hotel/'
In other words, Bunka was either a punitive camp or
one which applied special coercion. It is there that the
Japanese kept the prisoners whom, they used on broad-
casts. Cousens and Ince were transferred to Bunka, after
having first been kept elsewhere. (Ince, XXXI-3464:21-
3465:1; Cousens, XXIX-3253:18-25.) The foregoing evi-
dence shows the kind of coercion which was actually ap-
plied by the Japanese to compel Americans to broadcast.
The fact that such things actually took i^lace, and took
place on a large scale, tends to show that apprehensions
which defendant had as to what might happen to her if
she refused to broadcast were well grounded. They also
elucidate Takano's statement (XLV:4985:20-21) : ''You
take army orders. You know what the consequences are.
I donH have to tell you thaf .
4. INSTRUCTIONS GIVEN AND REFUSED.
By its instructions given and refused the Court first
treated the issue of duress if it arose in a case where the
defendant was able to call on the protection of her own
government, and next, virtually Avithdrew even that issue
from the jury. (We give authorities below to show that
the defense of duress is different, depending upon whether
the defendant is in a position to call on his or her own
government for protection.)
101
a. General rule of duress presented to jury.
The trial Court gave only two instructions on duress —
one general and one special. It refused all of defendant's
requests.
(1) The general instruction begins at LIV-5977:5 and
ends at LIV-5979:1. The appellant excepted to it as being
too restricted and on the ground that the correct law was
as stated in her requests. (LIII-5933:5-8.)
This instruction tells the jury that coercion means
*^some unavoidable circumstance, condition or fact, which
leaves no choice of action '\ (LIV-5977 :19-20.) It further
says that ''one must have acted under the apprehension of
immediate and impending death or of serious and imme-
diate bodily harm'\ (5977:24-5978:1.) There follows a
paragraph which says (LIV-5978:2-7) :
''Fear or injury to one's property or of remote
bodily harm do not excuse on office. That one com-
mits a crime merely because he or she is ordered to
do so by some superior authority, is, in itself, no
defense, for there is nothing in the mere relationship
of the parties that justifies or excuses obedience to
such commands.''
The reference to injury to property created a false
issue, since no such duress was claimed.
While the second sentence above includes the words
"mere" and "merely" it is nevertheless misleading, be-
cause it gives no weight at all to the fact that commands
from the Japanese Government emanated from the only
authority with which defendant had contact at the time.
(Conversely, this part of the instruction excludes consid-
eration of the fact that defendant could not then call on
102
the United States for protection.) At LIV-5978 :8-10, the
jury is told that *Hhe force and fear * * * must continue
during all the time of such service with the enemy''. This
again is confusing. Where orders are given by a govern-
mental authority exercising exclusive control, the threat
of sanctions is presumed to continue. (See infra.)
We discuss these points below, together with the re-
quirement which the instruction makes that the threat of
death or injury must be 'immediate''.
(2) The limited scope which the Court gave to the
defense of duress is emphasized by the instructions Avhich
were refused.
In the first place the Court refused the requests to the
effect that defendant need only raise a reasonable doubt
by her defense of duress (cf. cases under part 1-C, supra).
An illustration is Defendant's Proposed Instruction
No. 98, E. 313, as follows :
**If you find that the defendant did the acts
charged in the indictment, but entertain a reasonable
doubt as to whether or not she was acting under fear
of bodily injury, beating or the like, then you must
find the defendant not guilty."
To the same effect are No. 99 (R. 313), Nos. 102, 103
(R. 314).
Secondly, the Court refused the following instruction
which was modelled on one of the instructions given in
Kawakita v. U. S., No. 12061.
Defendant's Proposed Instruction No. 92 (R. 311) :
'^As to any overt act or acts charged in the indict-
ment and submitted for A^our consideration which
103
you may find to have been committed by the defend-
ant, if you entertain a reasonable doubt whether the
defendant did the act or acts willingly or voluntarily,
or so acted only because performance of the duties
of her employment recpiirod her to do so or because
of other coercion or compulsion, you must acquit the
defendant. ' '
This instruction relates to the defendant's right to obey
orders from the Japanese Government and contradicts the
sentence given at LIV-5978 :3-7.
Defendant's request No. 93 (E. 311-12) states that gov-
ernmental orders coupled with fear of death or serious
bodily injury are a defense, but leaves out the element
of immediacy. Defendant's request No. 94 (R. 312) says
that she must be acquitted if she had good reason to feel
compelled to broadcast by the Japanese.
Defendant's proposed instructions 96, 97 (R. 313), 100
(R. 313-14), 101 (R. 34) likewise set up the fear of death
or serious bodily harm without reference to immediacy
and request No. 104 (R. 314-15) calls the jury's attention
to the defendant's position as a civilian woman and her
probable capacity to resist threats of death or injury.
b. Special instruction devitalizing defendant's evidence.
Besides rejecting a great deal of evidence, the Court
virtually annihilated the evidence which it let in, with the
following instruction (LIV-5979:2-16) :
**The fact that the defendant may have been re-
quired to report to the Japanese police concerning
her activities is not sufficient. Nor is it sufficient that
she was under surveillance of the Kempei Tai. If you
find that she, in fact, was under such surveillance, it
104
is not sufficient that the defendant thought that she
might be sent to a concentration or internment camp
or that she might he deprived of her food-ration card.
** Neither is it sufficient that threats were made to
other persons and that she hneiv of such threats, if
you find, in fact, that such threats were made to her
knowledge.
**Nor is it sufficient that the defendant commenced
her employment wdth the Broadcasting Corporation
of Japan and continued that employment and com-
mitted the acts attributed to her merely because she
wanted to make a living."
This instruction takes various elements of the appel-
lant's defense and says that each singly is insufficient as a
matter of law.
Exception was taken at LIII.5936 :9-14, 17-18. Not only
do we claim that even the individual items sometimes
present an issue for the jury (see below) but the in-
struction is faulty in wholly ignoring cumulative effect.
In fact when the proposed instructions were discussed
under Eule 30, the trial judge said he would make a slight
modification to cover this last objection (LIII-5936:15-6)
hut failed to do so and gave the instruction in its original
form,
5. COERCION AS DEFENCE— BXTLINGS ON
INSTRUCTIONS ERRONEOUS.
a. General law of coercion as defence.
(1) We already have pointed out that the defendant
was completely at the mercy of the Japanese — it was im-
possible for her to call on the United States for protec-
tion.
105
Both English and American authorities agree that co-
ercion is a broader defence under such circumstances than
when the defendant is able to seek protection of the gov-
ernment to which he or she may owe allegiance.
The English law on this subject developed out of the
Scotch rebellion of 1745-6, in Avhich the last Stuart Pre-
tender seized control of Scotland for several months.
Hale's Pleas of the Crown (1778), East's Pleas of the
Crown (1806) and Hawkins's Pleas of the Crown (1795)
all review these cases and come to substantially the same
conclusion on them (see below). There are no later Eng-
lish authorities. Two American cases, one arising out of
the Revolutionary and one out of the Civil War, reach
the same conclusion, either by decision or by dictum.
Hale's Pleas of the Crown (1778) first makes the basic
distinction between times of war or insurrection and times
of peace : 1 Hale P. C— Ch. VIII, p. 49 :
''First, there is to be observed a difference between
the times of war, or public insurrection, or rebellion,
and the times of peace; for in times of war, and
public rebellion, when a person is under so great a
power, that he cannot resist or avoid, the law in some
cases allows an impunity for parties compelled, or
drawn by fear of death, to do some acts in them-
selves capital, which admit no excuse in time of
peace. ' '
(The law of the previous century had been more harsh.
The Stuart Restoration in 1660 denied the defence of
coercion by fear of death to the executioners of Charles
I. See Kelying's Crown Cases, p. 16.)
Foster's Crown Cases (1776) makes the following state-
ment (pp. 216-17) :
(See Appendix p. 15.)
106
The italicized ^portion shows that the requirement of
'^ immediacy^' in the Courtis instructions was error.
East's Pleas of the Crown (1806) adopts this text and
expands upon it, giving the most extensive exposition of
the subject (pp. 70-71).
(See Appendix p. 16.)
1 Hawkins Pleas of the Crown (1795) in the footnote to
chapter 17, sec. 24 (p. 90) gives the above rule with two
special remarks:
(1) The defendant may continue to obey orders as
long as he ^^ could not attempt an escape with probability
of success/'
(2) He adds ^^and certainly it is not for private indi-
vidualsj misguided by ignorance or heated by faction to
determine the proper moment of resistance' \
Since these texts are all based on the cases of 1745-6
they summarize the English laiv as it was before the
Declaration of Independence. The law of the United
States must be at least as favorable to the defendant
since it was the intention of the framers of the constitu-
tion to mitigate the English law of treason. See Cramer
V, U, S., 325 U.S. 1,
(p. 21) *'But the basic law of treason in this country
was framed by men who, as we have seen, were
taught by experience and by history to fear abuse of
the treason charge almost as much as they feared
treason itself".
(p. 23) '^The temper and attitude of the Conven-
tion toward treason prosecutions is unmistakeable.
It adopted every limitation that the practice of gov-
ernments had evolved or that politico -legal philosophy
to that time had advanced/'
107
And see list of limitations put upon treason, 325 U.S.
1, 27-30.
The two American cases on the subject squarely make
the distinction depend upon whether the defendant has an
opportunity to call for protection from the nation to
which he owes allegiance. First came Miller v. The
Resolution (1781) 2 U.S. 1, 1 L. Ed. 263, which arose out
of the surrender of Dominica to the Americans and
French at the end of the American Revolutionary War.
Dominica had been in British hands: the question was
raised whether the terms of capitulation did not consti-
tute treason against the British crown by the British
subjects who agreed to it, and that therefore the capi-
tulation could not be the source of private rights. (It
will be remembered, that, while the fighting on the Ameri-
can continent ended with the surrender of Cornwallis in
1781 the technical state of war and the actual fighting
between France and England continued until the Treaty
of Paris in 1783.) The Court, however, held the capitula-
tion of Dominica to be legally valid in all respects: the
private citizen is entitled to make the best bargain he can
when his sovereign is unable to give him protection. The
Court says (p. 10) :
''It must be admitted, that where the supreme au-
thority is competent to protect the rights of subjects,
a subject cannot divest himself of the obligation of a
citizen, and wantonly make a compact with the enemy
of his country, stipulating a neutrality of conduct;
hut certainly he may enter into such an agreement
where it is no longer able to give him protection. In
the present case, the Bi-itish Crown was not able to
secure to the owners their estates in Dominica, and
therefore they had a natural right to make the best
108
terms they could, for the preservation of their prop-
erty, for it is a general maxim of the law of nations,
^that although a private compact with the enemy may
be prejudicial to a state in some degree, yet if it
tends to avoid a greater evil it shall bind the state,
and ought to be considered as a public good.' ''
Respuhlica v, McCarty (1781), 2 U.S. 86, 1 L.Ed. 300,
arose out of the Revolutionary War and discusses the
defense of duress, but is not in point. The defendant was
a soldier captured by the British! The Court held there
was an opportunity to escape back to the American lines.
Thus it was not a case where the defendant is in terrotory
wholly controlled by the enemy.
The only other American case touching the point is
U, S. V. Greiner (1861), 26 Fed. Cas. 36, Fed. Cas. No.
15262. Everything said on the subject is dictum; the
holding went off on a point of venue. But the Court cites
and approves the cases of 1745-6 and is careful to draw
the distinction between situations where protection by the
lawful government is available and where it is wholly cut
off:
(See Appendix p. 18.)
As we shall show in the next section, the Court below
departed from the foregoing law both in the instructions
which it gave and which it refused.
(2) The peace time law of coercion is that the defend-
ant must have "di well grounded apprehension of death
or serious bodily injury if the act is not done." {Shannon
V, U. 8., 76 F. (2d) 490, 493.) See also U. S. v. Vigol
(1795), 2 U.S. 346.
109
Respiiblwa v. McCarty, 2 U.S. 86, 87, supra, suggests
by dictum that the threat of starvation is a good defense.
b. Under above law instructions given and refused were error.
Under the above authorities the Court erred both in the
giving and refusal of instructions. It erred first in wholly
ignoring the distinction between ordinary cases and cases
where the defendant cannot yet protection from the power
which claims her allegiance; second, the instructions do
not even give defendant the full benefit of the peacetime
rule of coercion.
(1) Instructions ignore evidence that defendant could not get protection
from the United States.
We have indicated generally that the instructions fail to
give weight to the evidence that defendant could get no
protection from the United States. We now examine them
in detail.
a. Since the orders come from the Japanese Govern-
ment when the defendant could get no protection from
the United States it was incorrect and erroneous to in-
struct that (LIV-5978:5-7) "there is nothing in the mere
relationship of the parties that justifies or excuses obedi-
ence to such commands". (Italics added.)
Where the individual is ivholly in the power of a hostile
government such relation is at least a relevant factor i}t
determining whether the defendant was justified in obey-
ing rather than resisting its orders. To say there is
''nothing in the mere relationship of the ])arties that justi-
fies or excuses obedience to such commands'^ is palpable
error. We believe this part of the Court's instruction at-
tempts to follow Giiigni v. U. S., 127 F. (2d) 78(1, which is
110
not in point. That case involved the crew of an Italian
ship in an American (Puerto Kican) harbor. Orders came
from the Italian Naval Attache at Washington and from
the master of the vessel. Obviously the crew members
were not wholly in the power of either one : they could
have sought protection of the American port authorities
(127 F. (2d) 786,791).
(b) Nor is the clause at LIV-5978:3-5 saved by the
words ** merely'' and ''in itself":
''That one commits a crime merely because he or
she is ordered to do so by some superior authority is
in itself no defense".
It is a defense that a person obeys commands where
resistance would be futile. (East's Pleas of the Crown, p.
72, supra.) While the words "merely" and "in itself" are
doubtless intended to exclude any additional facts, no other
instruction was given telling the jury the legal effect of
such additional facts. (We discuss below other parts of
the same instruction.) With the foregoing as the only in-
struction on governmental orders, the jury was almost
forced to conclude that such orders were irrelevant —
which was not the case.
Consequently, the entire paragraph of the instruction
appearing at LIV-5978 :2-7 was prejudicially erroneous be-
cause it denies all effect to hostile governmental orders
even where defendant could not call upon her own govern-
ment for protection.
(c) The foregoing instruction is likewise erroneous in
requiring that threatened death or harm must be "im-
mediate". (LIV-5977:25, 5978:1, 14, 20.) We have already
Ill
seen that both East and Foster expressly repudiate this
requirement where the defendant is wholly in the power
of a hostile government.
In fact, all reason is against such a rule where duress is
imposed by those who control governmental machinery.
In at least a large number of cases the victim would not be
executed on the spot, but only after some form of trial.
However sham and prearranged such a trial might be, it
takes time. While the individual has no chance of re-
sistance, he would not be executed ^^immediately'' in any
ordinary sense of the word. Both for this reason and on
the authority of East and Foster, supra, the instruction
erred in telling the jury that the defense of duress was
valid only if the defendant could show that death or bodily
harm would immediately follow disobedience.
(d) Finally the above instruction errs where it at-
tempts to define the affirmative circumstances under which
the defense of duress would be valid. The jury are told
that they should acquit defendant if she acted (LIV-5978:
19-21)
*' under a well grounded apprehension of immediate
death or serious bodily injury to be inflicted by any
particular person or agent of the Japanese govern-
ment."
The italicized words are apposite for private, lawless
duress, but not for duress by a government. They evoke
the picture of a particular person holding a gun against
the defendant's ribs, and ordering her to do something.
That is the method of a j)rivate criminal, but not of a
governmental organization. When governmental orders
are enforced, the official who gives the order is usually
112
not the one who inflicts the physical punishment for dis-
obedience. In the United States, infliction of punishment
on civilians is done by a deputy marshal, whom the de-
fendant, in most instances has never seen before. A mili-
tary execution may be performed by a firing squad, of
whom the prisoner certainly does not know beforehand
that the particular individuals would be picked for that
task.
So in the situation of the defendant: officials at Radio
Tokyo gave her orders, but the actual infliction of punish-
ment for disobedience would probably be carried out by
another department. Which members of the other depart-
ment would he picked to perform that duty is something
which defendant could not know in advance.
In short, the instruction given that the defendant must
fear death or injury from a particidar person ignores the
fact that the duress was imposed by a hostile government.
It deprives her of the defence unless she is able to name
the official who will personally inflict punishment. Instead,
the instruction states the rule applicable where the duress
emanates without color of law from a private person.
Since the evidence shows governmental duress, this part
of the instruction is basically erroneous and prejudicial.
(e) We have already shown that the defendant's re-
quests which the Court refused raise the same issues we
have just discussed. Refusal of the defendant's requests
was error for the same reasons that it was error to charge
as the Court did.
113
(2) Instructions even denied defendant the benefit of the full peacetime
rule of duress.
The instruction at LIV-5979 :2-16 deprives defendant
even of the full benefit of the peacetime defense of coer-
cion. It tells the jury that each of the following elements
is insufficient as a matter of law :
First, that she was required to report her activities to
the Japanese police;
Second, that she was under surveillance by the Kempei-
tai;
Third, that she was under surveillance by the Kempei-
tai and believed that she might be sent to a concentration
camp or deprived of her food ration card;
Fourth, that threats w^ere made to other persons and
she knew of such threats;
Fifth, that she worked at Radio Tokyo in order to make
a living.
(a) The instruction did not tell the jury anything
about the cumidative effect of the above elements, or of
all the evidence on coercion.
According to the peacetime rule, coercion is a defence
if it ^^ ' induce [s] a w^ell-grounded apprehension of death
or serious bodily injury if the act is not done". (Shannon
V. U. S., 76 F. (2d) 490, 493.)
Under such a rule, the cumulative effect of all evidence
of coercion is the only thing that matters. The question
is — in view of all the circumstances — did defendant have
a well grounded apprehension of death or serious bodily
injury! It is wholly beside the point to take individual
items and tell the jury that, standing alone, a particular
114
item is insufficient. And when a long series of items are
each treated in that manner^ the effect cannot hut he
prejudicial to the defendant.
Such an instruction must inevitably make the jury lose
sight of the issue of cumulative effect.
(b) If the instruction be viewed as a comment on the
evidence, it is objectionable because one-sided. (See LIII-
5936:9-11, 17-18, where we took that specific exception.)
In effect, it tells the jury that if they disbelieve all the
evidence except one item, that remaining item is insuf-
ficient. But comments on evidence cannot single out the
evidence of one side for either favorable or unfavorable
comment. Williams v, U. S., 93 F. (2d) 685, 692-3 (CCA.
9); O'Shaughnessy v. U, S,, 17 F. (2d) 225, 228 (CCA.
5) ; Hunter v. U, S., 62 F. (2d) 217, 220 (CCA. 5) ; Min-
ner v, U. S., 57 F. (2d) 506, 513 (CCA. 10); Martin v.
Canal Zone, 81 F. (2d) 913, 913-14 (CCA. 5). Viewed as
a comment on the evidence, it was improper to tell the
jury that each of a series of items was insufficient, without
once mentioning the effect of a combination of several.
(c) But the instruction errs not only in omitting cumu-
lative effect. Even as to the single items, it was error to
tell the jury that each was insufficient as a matter of law.
The question throughout is — how much of a threat does
the particular act carry f If, in view of all the evidence in
the case, any of the acts mentioned in the instruction
(LIV-5979:2-16) gives rise to a well-founded apprehen-
sion of death or serious personal injury, then that item
constitutes a defense. Whether each item in the light of
all the evidence, does give rise to such an apprehension,
is a question for the jury. Particularly is this true ( 1 ) of
115
threats made to others and communicated to defendant
(LIV-5979:10-12) and (2) of withdrawal of her food
ration card. (LIV-5979:8-9.)
We believe that Kasinowitz v. U. S., 181 F. (2d) 632,
635, 636 holds that such communicated threats may in
themselves be sufficient to raise a reasonable apprehension.
Certainly it is conceivable that reports of what happened
to others may induce a well grounded apprehension that
the same thing would happen to defendant. And, we sub-
mit, the evidence recited supra, of such communicated
threats is sufficient to make the issue one for the jury.
Likewise, withdrawal of the food ration card may be
tantamount to starvation. Whether or not, was for the
jury to decide. As already pointed out, Respuhlica v.
McCarty, 2 U.S. 86, seems to recognize starvation as a
mode of duress. Practically it is an effective means of
coercion.
Finall}^ it was error flatly to charge the jury that the
necessity of making a living was no excuse. (LIV-5979:15-
16.) Chandler v. U. S., 171 F. (2d) 921, expressly leaves
the point open, but indicates that the rule would be contra,
at least under certain circumstances:
(p. 945) : ^'Nor does the present case necessitate any
detailed examination as to how far an American citi-
zen, caught in an enemy country at the outbreak of
war, may, in order to earn a living and without the
stigma of treason, accept employment which in these
days of total w^ar might conceivably be of some aid
to the enemy war effort. Here, as elsewhere, there
may be troublesome questions of degree."
The error in charging the jury as a matter of law, on a
series of isolated items, is emphasized in a wartime case.
I
116
See quotation from East's Pleas of the Crown, p. 71,
supra, App. p. 17: in the Scotch cases of 1745, the ques-
tion of coercion was always left to the jury on the whole
evidence,
c. Summary.
The instructions ignore the facts that defendant was
wholly in the power of a hostile government during war-
time, and that she was subject to the duress of govern-
mental machinery, not merely of private lawlessness. A
glimpse of her situation may be had from the Avords of
Justice Jackson, nonetheless apposite because in a dissent-
ing opinion : Bowles v. U, S., 319 U.S. 33, 37 :
^^The citizen of necessity has few rights when he
faces the war machine.''*
How much more is that true of an alien enemy in a
hostile country!
It is aggravated by the savage penalties which the Im-
perial Japanese Government was wont to impose in war-
time— a matter of which the Supreme Court took judicial
notice in Johnson v, Eisentrager, 94 L. Ed. Adv. Ops. 814,
820-21:
*' While his [alien enemy in the United States] lot
is far more humane and endurable than the experience
of our citizens in some enemy lands, it is still not a
happy one.''
(P. 822) :
^^This is in keeping with the practices of the most
enlightened of nations and has resulted in treatment
of alien enemies more considerate than that which has '
prevailed among any of our enemies and some of our
allies."
*The majority holding strengthens this observation, since it
denied even the right which Justice Jackson wanted to grant.
117
The instructions wholly disregard this situation. More-
over, they do not even give defendant the full benefit of
tlie peace-time rule. They charge categorically on matters
which should have been left to the jury; and they fail to
present the issue of cumulative effect.
6. COERCION AS DEFENSE— RULINGS ON
EVIDENCE ERRONEOUS.
The foregoing exposition of the law makes it clear that
the Court erred in its exclusion of various types of evi-
dence.
a. Evidence of oflGicial duress brought home to defendant.
We have already discussed the admissibility of con-
versations in which defendant was told about the atrocities
committed against those who disobeyed orders. (See
pp. 88-9, supra.) The issue is the same as in Kasinoivitz
V. U. S., 181 F. (2d) 632, and this type of evidence is
admissible for the same reason. The issue is whether the
defendant had a ^^well grounded apprehension". Evidence
of conversations with others goes in, not to prove the
truth of the contents of the conversations, but on the
ground that such conversations are a factor in building up
a reasonable apprehension.
Furthermore, the exclusion was prejudicial. It is true,
some other evidence of the same type was admitted. But
the question whether defendant had such an apprehension
that she was afraid to disobey is a matter of degree. The
effect of one or two conversations is not the same as that
of a great number. This is recognized in Acheson v. Mura-
kami, 176 F. (2d) 953, 959, where a large number of
reports and rumors are set forth to give a full i)ieture of
the fear under which the Nisei lived who wore interned in
118
the United States. By excluding part of her evidence, the
Court prevented defendant from showing in full force the
circumstances which gave rise to her apprehension of
death or serious injury if she should disobey orders.
b. Evidence of duress on defendant by private persons (threats
of mob violence).
Threats of mob violence are clearly relevant in deter-
mining whether a person acted under coercion. Defend-
ant offered them in conjunction with evidence of official
duress. This is precisely the same way in which such evi-
dence was offered and held relevant in Acheson v. Mura-
kami, 176 F. (2d) 953, 958-9. According to that decision,
the trial judge committed patent error in excluding evi-
dence of incipient mob activity against the defendant and
her husband. Compare also Moore v. Dempsey, 261 U.S.
86, in which threatened mob violence was the sole element
invalidating legal action.
c. Evidence of duress on others not communicated to defendant.
Evidence of duress on others, even where not communi-
cated to defendant, was relevant on three grounds.
First, it showed objectively that defendant's apprehen-
sions were '^well grounded''. ^*Well grounded" is an ob-
jective standard. The evidence of conversations (supra)
goes to show that defendant's apprehensions were well
grounded on the basis of what she knew. But it is equally
relevant to show that her apprehensions were well
grounded in fact. Evidence of how others had been treated
goes to show that what she feared actually occurred: it
was not merely a matter of imagination. Certainly that
is a material factor in determining whether she was jus-
tified in obeying orders rather than resisting.
119
Second. According to defendant, Takano told her ''You
have no choice. You are living in a militaristic country.
You know what the consequences are. I don't have to tell
you that.'' (XLV-4985:19-21.) This statement incorporates
matters by reference, and evidence is admissible to ex-
plain the reference. The statement is a reference by
Takano, notwithstanding that he put in the sentence ''You
know what the consequences are". This sentence merely
shows that he assumed defendant knew everything that he
knew\ But the whole statement refers to matters which
Takano knew as a Japanese official. Evidence of the kind
of punishment w^hich the Japanese Government adminis-
tered was relevant to show the actual contents of Takano' s
threat.
Third. Evidence of duress on others (particularly Ex-
hibit W for identification, supra, p. 97) was relevant to
show scheme or plan on the part of the Japanese officials.
Proof of such scheme corroborates the testimony of
defendant's witnesses as to particular occurrences and
aids in resolving the conflict between their testimony and
the denials by the prosecution witnesses that any death
threats were made (see infra).
It is well established that the prosecution may prove
other offenses when they tend to prove scheme, plan or
system. {Lisenba v. California, 314 U.S. 219, 227-8; John-
son V. U. S., 318 U.S. 189, 195-6; Smith v. U. S., 173 F.
(2d) 181, 185 (C. A. 9); Schwartz v. U. S., 160 F. (2d)
718, 721 (CCA. 9).)
Where proof of a scheme or plan is logically relevant it
may equally be shown by the defense. Tn this case both
Tsuneishi and Mitsushio denied that anv throats of death
120
were made to any one at Radio Tokyo. {Tsuneishi, V-364:
2-16, 366:18-22, 324:3-9; VI-448:4-ll; VII-460 :14-21 ; MiU
sushio, XII-1110:22-25.)
Existence of a general system on the part of the Japa-
nese military would help the jury to resolve this conflict
in specific instances. Exhibit W for identification, in par-
ticular (orders to Wake Island prisoners, XXXVII-4184)
was the only piece of documentary evidence offered on the
issue by either side. It squarely corroborates the defense
witnesses. Such evidence is therefore just as relevant
when offered by the defense here, as it is when offered by
the prosecution to prove plan or system.
Fourth. Gillars v. U. 8,, C.A. D.C. No. 10187, slij)
opinion, pages 12-13, holds all duress on others inad-
missible, but cites no authorities. None of the above
grounds for admitting such evidence are even considered.
We submit the opinion is so scant upon the subject that
it cannot be treated as authority. A case is not authority
upon points lurking in the record but not expressly dis-
cussed. {U. 8. V. Mitchell, 271 U.S. 9, 14; Webster v. Fall
266 U.S. 507, 511.)
d. Evidence of state of terror pervading entire Radio Tokio staff.
Evidence that the entire broadcasting staff at Kadio
Tokyo was kept in a state of fear after November, 1943,
is certainly material as to defendant, who worked there.
It was plain error to exclude the last answer of witness
Hayakawa, which dealt with this situation. (R. 395-6.)
7. All this restriction of the defense of duress was
plainly prejudicial. As stated before the prosecution wit-
nesses testified that they ordered defendant to make the
alleged broadcast which constitutes Overt Act 6 {Mitsu-
121
shio, XI-971:13-18, 974:17-976:11.) The errors recited
therefore touch the very incident on which the conviction
rests.
8. SUMMARY.
The Court's instructions and iulin<2:s on evidence de-
prived defendant of virtually all her defense of duress.
Much evidence was excluded which was plainly relevant —
notably reports of atrocities communicated to defendant
and suggestions of mob violence against defendant her-
self.
The instructions completely disregarded the fact that
defendant was wholly in the power of a hostile govern-
ment, and that the duress directed against her was gov-
ernmental duress. Moreover, they did not even give her
the full benefit of the rule governing duress by ])rivate
persons in peacetime.
The Court's handling of this issue alone requires re-
versal of the judgment.
B. THE GENEVA CONVENTION.
The defense of the Geneva Convention (47 V. S. Stats.
at L. 2021) is the counterpart to the defense of duress.
Defendant could not call upon tlie United States for
protection, and the defense of duress is based [)aitly u])07i
that circumstance. The Geneva Convention is an attempt
to give prisoners of war protection, not directly from tli(^
countries to which they owe allegiance, but through inter-
national agreement. Defendant requested instructions
based on the theory that the Geneva Convention ap])lies
to her, at least vis a vis the United States (Jovernment.
(Requests Nos. 39, 106-137, R. 298-308.)
122
The gist of these requests is that prisoners are subject
to the laws of the detaining power (Art. 45 — request 117;
R. 301-2) ; that belligerants may utilize the labor of pris-
oners of war according to their rank and aptitude (Art.
27 — request 118, R. 302) ; that no prisoner shall be em-
ployed at labors for which he is physically unfit (Art. 29 —
request 121, R. 303) and most important that ''Labor fur-
nished by prisoners of war shall have no direct relation
with war operations''. (Art. 31— request 120, R. 302-3.)
The defendant's position was summed up in request 127,
R. 305, that "work which had a direct relation with war
operations" was the only work which she could not legally
perform. (See also request 126, R. 305.)
Obviously, the fundamental question is whether the
Geneva Convention applies to the defendant. But this
question itself depends partly upon the force of a treaty
as between a government and its own citizens. We shall
therefore discuss the latter question first.
1. OPERATION OF TREATY AS BETWEEN THE GOVERNMENT
AND ITS OWN CITIZENS.
For purposes of this discussion, Ave accept the govern-
ment's current contention that the defendant is a citizen
of the United States.
a. The Constitution puts treaties and acts of Congress
on the same footing as the law of the United States :
Art. VI, cl. 2 :
''This Constitution and the laws which sliall be
made in pursuance thereof and all treaties made un-
der the authority of the United States shall be the
supreme law of the land."
123
So in addition to its international aspects, a treaty fixes
rights and obligations as hetiveen the United States Gov-
ernment and its citizens, exactly like an Act of Congress.
b. Treaties are to receive a liberal construction. It
has been held that they are to be construed more libeially
than private agreements. Choctatv Nation v. United States,
318 U.S. 423, 431.
c. As between the United States and its own citizens,
rights under a treaty may be claimed by })rivate citizens.
This follows necesarily from tlie provision that a treaty
is *'the supreme law of the land" in the same manner as
an act of Congress. The note in Johnson v. Eisentrager,
94 L. Ed. Adv. Ops. 814, 829, n. 14, that rights under the
Geneva Convention are vindicated only through protests
of the protecting power, refers to matters between the
Government of one country and the citizens of another,
2. APPLICABILITY OF GENEVA CONVENTION TO DEFENDANT.
As indicated above, the Geneva Convention is included
in the United States Statutes at Large. (47 Stats. 2021.)
In re Yamashita, 327 U.S. 1, 23 says that the United
States and Japan were signatories to the Convention. The
dissenting opinion of Justice Rutledge asserts that th(^
Convention was never ratified by Ja])an. (327 U.S. 1, 72,
n. 36.) But after outbreak of the war, the United States
and Japan exchanged diplomatic notes, by which they
agreed (1) that both of them were bound by the (leneva
Convention and (2) that its terms should apply to interned
civilians as well as to military prisoneis. This is Defend-
ant's Exhibit BU for Identification (1^-5595) which was
rejected by the trial Court. (The exhibit consists of photo-
124
stats of identical documents which were admitted in
KawaUta v. U. S., No. 12061.)
The legal question is the same as if the Exhibit had
been received in evidence — whether the Geneva Conven-
tion likemse governs tminterned civilians. This question
must be answered affirmatively both in general and spe-
cifically as between the United States and its own citizens.
a. The Geneva Convention applies generally to uninterned
civilians.
Defendant was entitled to instructions on the theory
that the Geneva Convention applies to uninterned as well
as to interned ci\dlians. This is true first because it is the
correct construction of the Convention under the rule of
broad construction, supra, and in view of the fact that the
legal position of interned and uninterned civilians is iden-
tical; second, because the record contains evidence that the
Japanese in fact placed defendant on the same footing as
a prisoner of war.
(1) The legal position of interned and uninterned civilians is identical.
A belligerent has the right to intern all indi^ddual alien
enemies. Any degree of freedom which it allows them is
purely a matter of grace. Compare Johnson v. Eisen-
trager, 94 L. Ed. Adv. Ops. 814, 822, n. 6, (juoting Citizens
Prot. League v. Clark, 155 F. (2) 290, 293:
'^ ^At common law ** alien enemies have no rights,
no privileges, unless by the King's special favor,
during the time of war'' [Blackstone-372, 373]'."
Rex V. Vine St. Police Station [1916] 1 K.B. 268, 278-9:
^^At common law an alien enemy had no rights
(case) and he could be seized and imprisoned and
12o
could have no advanta,i!:o of the law of England. This
position, however, has been softened by custom and
by decision of the Coui-ts * * * lie is therefore in a
similar position to an alien enemy resident here under
license from the Crown. 77/ r// license, hoivever, can
he terminated at any tunc hi/ Ihc Crotvn * * *'^
Similarly, the provisions of the Alien Enemy Act (50
U.S.C. 21 ff) are that alien enemies may be interned upon
the issuance of an executive order. Legally, therefore,
interned and uninterned enemy aliens are equally much
at the mercy of the government of the country in which
they reside.
This being so, they are included within the spirit and
intention of any international agreement which seeks to
protect the nationals of one belligei-ent in the territory of
its opponent. Under the rule that treaties must be broadly
construed, the Geneva Convention, with its subsequent
enlargement through Exhibit BU for identification, must
be construed as covering uninterned civilians like defend-
ant.
(2) The Japanese put defendant in same class as prisoners of war.
Cousens testified that when lie was taken to the prison
camp at Mergui, Burma, he was told ^'that we were
prisoners of war of the Im[)erial Japanese Army. We
had no rights". (Cousens, XXVI II -:]1 22:1 4-1 (>.) Likewise
at his first interview before Tsuueislii. (Cousens, XXTX-
3235:25-3236:1.) When Takaiio ordered the defendant to
broadcast he told her exactUj the s(nnc fhinf/.
Cousens, XXVIII-3184:21-4 :
**1 recall that she said, as pai-t of the conversation,
that she had been told the old familiar phrase that
126
we have been told, fhat she was a foreigner that she
had no rights and that she had to obey''.
This shows that the Japanese classified the defendant
the same as a prisoner of war. If the Japanese put her
in a prisoner of war catep^ory, they could not be heard to
say that she was not protected by the Geneva Convention.
And certainly no other signatory would want to deny her
its protection.
3. APPLICABILITY OF GENEVA CONVENTION TO DEFENDANT AS
BETWEEN HERSELF AND THE UNITED STATES GOVERNMENT.
As between the United States and its own citizens there
are even more cogent reasons for holding the Geneva
Convention applicable to persons in defendant's position.
For as between the United States and its citizens, the
convention prescribes what American citizens may and
may not do while residing in an enemy country. It is in
effect an exegesis on the treason statute. (18 U.S.C. 1.)
For when the United States signs a treaty saying that
the detaining power may utilize the labor of war prison-
ers (Arts. 27, 29) and shall be obligated to pay for same
(Arts. 28, 34), the United States certainly is not going
to punish its citizens for treason for doing the w^ork which
it has agreed the detaining power may demand. And when
it specifies that prisoners shall not be used for work
having "direct relation with war operations", it is in
effect approving their use for work having only indirect
relation with war operations. Conceivably, this might
give aid and comfort to the enemy. But here again, the
United States obviously does not intend to punish its
prisoners for treason for obeying orders which it has
agreed that the detaining belligerent may lawfully give.
127
And if it does not piinish its prisoners or interned
civilians for treason under these circumstances, there is
no logic in imposing that penalty on yvinferned civilians,
ivho are otherwise in exactly the same position. The fact
that they are not interned is a matter of grace or accident
— they are just as much subject to the coercion of the
detaining power. (Compare Okada's testimony, R. 785,
that the Japanese government did not intern the Nisei,
Chinese or Manchurians in Japan hecause they were so
numerous that it was impracticable. The defendant testi-
fied that she repeatedly asked for internment and was
refused, being told she was a woman and, therefore, prob-
ably could not do much harm. Defendant, XLV-4966:13-
22.)
The sum and substance is that the Geneva Convention
marks the adoption of a neiv policy governing the acts of
aliens in an enemy country. And it is a settled rule of
construction that a statute tvhich initiates a policy must
he construed to cover all ivho fall within the scope of the
policy. See Van Beech v. Sabine Towiny Co., :^00 T\S. 342,
344:
(See Appendix p. 18.)
Viewed from this standpoint, the Geneva Convention
and its extension in Exhibit BU for Identification, applies
to persons like defendant, who are caught in an enemy
country and only happen not to be interned.
4. DEFENDANT'S PROPOSED INSTRUCTIONS CORRECTLY SUB-
MITTED LAW UNDER GENEVA CONVENTION AND ERRONE-
OUSLY WERE REJECTED.
The substance of defendant's proposed instructions
under the Geneva Convention was first, that as a statute
128
of the United States it had to be read together with 18
U.S.C. 1. (Request No. 106, R. 299, quoting Constitution
Art. VI cl. 2; requests 125, 126, R. 304-5, as between the
United States and its citizens the Geneva Convention
legalizes all acts by United States citizens in enemy terri-
tory which it does not forbid.) Second, that the conven-
tion permitted the detaining power to use prisoners even
for work indirectly related to the war effort (since it
generally permitted the detaining power to use the labor
of war prisoners and forbade only labor having a direct
relation with war operations; requests, 118, 120, set forth
at R. 302). Third, defendant's requests submitted as a
question of fact to the piry whether defendants broad-
casting was directly or indirectly related w^ith war oper-
ations. (Requests 127-129, 132, R. 305-7.) Another group
of requests presented the alternative proposition that de-
fendant's broadcasts as a matter of law had no direct
relation with war operations. (Requests 131, 133, 136, R.
306-8.)
The general applicability of the Geneva Convention was
summed up in Request 115, R. 301, which we submit states
the correct law (even though it should perhaps have been
covered by a flat instruction that defendant was within
the purview of the convention).
(No. 115, R. 301) ^' Where the United States by
treaty has consented that its military prisoners of
war may do certain kinds of work while under the
power of an enemy nation and American civilians are
in the enemy country at the outbreak of war with the
United States, the United States does not punish its
civilian citizens for treason for doing exactly the
same thing which it has permitted to its military
prisoners."
129
Once the Geneva Convention is hold applieahle, the
theory of the above instructions is clearly correct. Since
the Geneva Convention forbids only work having a direct
relation with the war effort, the (question for the jury to
decide is whether the defendant's work bore such relation.
If there is evidence on each side of the question the jury
should have been allowed to pass upon it. Otherwise the
defendant was entitled to peremptory instructions in her
favor.
5. SUMMARY.
Defendant, though uninterned, was legally in exactly
the same position as American civilians interned in Japan.
The Japanese could intern her wiienever they wished.
She was subject to exactly the same coercion. It does not
make sense that she should he guilty of treason for pre-
cisely the same acts which the Geneva Convention legal-
izes for interned civilians.
In view of this fact, together with the rules that treatie?'
are broadly construed and that statutes initiating policy
are construed to cover all cases logically included within
the policy, the Geneva Convention must be held applicable
to persons in defendant's situation. She could legally be
ordered to do any work which did not have '^ direct rela-
tion with war operations". The Court should have sub-
mitted to the jury the question whether her broadcasts
had a direct or only an indirect relation with war opera-
tions.
C. ERRORS RESPECTING OVERT ACT 6.
Several errors were commitled bearing directly on
Overt Act 6 (on which defendant was convicted). First,
130
the Court gave an incorrect instruction: i^econd, the prose-
cutor twice misstated the evidence in his argument to the
jury. Two improper questions which the Court allowed
on this topic will be discussed under ''cross-examination
of the defendant". We first recapitulate the evidence on
Overt Act 6. Oki and Mitsushio testified that in October,
1944, after news of the battle of Leyte Gulf, the defendant
broadcast the words ''Now you fellows have lost all your
ships. You really are orphans of the Pacific. Now how
do you think you will ever get home!" {OM, IX-682 :16-18 ;
see also, Mitsushio, XI-974:l-3.)
Nakamura testified to an alleged similar incident occur-
ring sometime in the fall of 1944. He specifically said that
he could not fix the time any closer. (Nakamura, XXI-
2295 :9-13.) His version of the words was, " 'Tliis is Orphan
Ann saying hello to all you boneheads in the Pacific. Now,
you have lost so many ships, how are you going to find
your way back home\ Or something to that effect".
The defendant denied any such broadcast. She said the
closest thing to it that ever occurred was when after the
Battle of Formosa, Oki suggested to Reyes that such a
broadcast be made. But the suggestion was not to her,
nor did she make such a broadcast. (Defendant, XLIX-
5512:6-5514:9; see also Defendant, XLVI-5122:6-5123:4;
XLVII-5302:23-5303:14.)
Clarke Lee testified that she told him she had made such
a broadcast after the Battle of Formosa. {Lee, VIl-485:3-
486:6.)
Although the defendant denied Overt Act 6, she is en-
titled to have the prosecution's evidence on the subject
correctly submitted. Cf. Lee c. Mississippi, 332 U.S. 742
131
(mode of taking alleged confession is in issue even where
defendant denies making any) ; People v. Keel ^ 91 Cal.
App. 599, 267 Pac. 161 (defendant entitled to instruction
on self-defense where sup])orted by other evidence, though
he himself denies stabbing).
Because defendant had no ])revious knowledge of the
specific acts charged in Overt Act 6, her own testimony
was her principal defense on that charge. The Court had
denied a motion for a bill of i)articulars befoi'c^ the trial.
(Motion, par. 16, R. 99, 106-7, Order, R. 115.) The only
witnesses besides defendant w^ere those who gave general
negative testimony that they had never heard such broad-
cast (supra, pp. 28-9) ; Duane M osier, who said he heard
a man announcer discuss the Leyte Gulf battle after de-
fendant's program on Novemher 5 or (>', 1944 (Mosier,
XL-4474:12-4475:19) and Charles Sexton, .Jr., who said
that while he was en route to Leyte on Deceixher /> or i,
1944, at about 2 or S P.M., he heard the bombardment of
Leyte mentioned over the Japanese radio by a woman
with a slight oriental accent, not the defendant. (Sexton,
XL-4484:1 2-4486:25.) He had met defendant. (Sexton,
XL-4488:25-4489:l.)
This sham of a '' treason *' trial, as conceived by the
government, was a novel one to say the least. The de-
fendant was left in complete ignorance of the real nature
of the accusation against her. She was blocked by the
denial of a bill of particulars from learning the nature
of the accusation. The want of a list oF the prosecution's
witnesses in Japan prevented her counsel from conducting
a full and comj)lete investigation concerning tliose wit-
nesses and the evidence the })rosecution expected to ad-
duce from them. Apparently, it is not necessary to notify
an accused of the real nature of an accusation for this
might enable the accused in a '^sensational" case to pre-
pare and present a defense. Evidently it is inexpedient,
from the prosecution's viewpoint, to allow a defense to be
made when the Administration, under the pseudonym of
' * Government^' , is bent upon prosecuting a policy case.
1. PREJUDICIAL INSTRUCTION ON OVERT ACT 6.
After quoting that part of the indictment which re-
ferred to Overt Act 6, the Court went on to say,
LIV-5955:13-15 ''The witnesses who testified re-
garding the commission of Overt Act No. 6 were
George Mitsushio, Kenkichi Oki, and Satoshi Naka-
mura".
Defendant excepted to this part of the instruction on
the ground that it should have been left to the jury
whether Nakamura testified to this same act or to some
other occurrence. LIII-5930 :19-21 ; see also LIII-5931 :4-6.
This objection turns on the fact that while the indictment
(K. 6), Oki and Mitsushio placed Overt Act 6 in October ,
1944, Nakamura testified generally to something ''in the
Since the "fall of 1944" covers more than merely the
month of October, it is obvious that Nakamura might or
might not have been referring to the same alleged inci-
dent as Oki and Mitsushio. This doubt is emphasized by
Nakamura 's different version. Before the jury could
accept Nakamura as a corroborating witness, they had to
decide the preliminary question whether he was testifying
to the same incident — "the same Overt Act".
133
But the Court did not aJJoir fhrni to pass npon that
preliminary question. Instead it instructed them peremp-
torily that Nakamnra was a witness to Overt Act No. 6
(see quoted instruction supra, ]). 132). Such peremptory
instruction rei;arding evidence which could reasonably be
taken in two different ways was ei-ror under the jirinciple
of cases like Gardner ?;. Bahcock, 70 U.S. 240, where this
Court said
(p. 244) *^the court could not tell the jury that any
legal result followed from evidence which onJi/ tended
to prove the issue to be tried".
Other authorities to the same effect are :
7 Cyclopedia of Federal Procedure (2d Ed.), Sec-
tion 3375, p. 624.
** Facts in issue and material nmst not be assumed
as true, if there is any evidence on which the jury
might find the contrary. The instruction, therefore,
should not declare a presumption of fact which is for
the jury to draw."
Weightman v. Corporation of Washington (1861),
66 U.S. 39, 17 L. Ed. 52, 57.
a* * * ^jigj.g there is evidence tending to prove
the entire issue it is not competent for the court,
although the evidence may be conflicting, to give an
instruction which shall take from the jury the right
of weighing the evidence and determining its force
and effect, for the reason that, by all the authorities,
they are the judges of the credibility of the witnesses
and the force and effect of the testimony."
53 Am. Jur. 478, note, col. 1 ;
Wesley v. State (1859), 37 Miss. 327, 75 Am. Dec.
62, 67 ;
134
People v. Strong (1866), 30 Cal. 151, 158;
People V. Buster (1879), 53 Cal. 612, 613:
Cf. State V. Truskett, 85 Kan. 804, 118 Pac. 1047,
1051, col. 2.
Since Nakamura's testimony could be construed as re-
ferring either to the same or a different incident as that
mentioned by Oki and Mitsushio, it was error flatly to tell
the jury that Nakamura was testifying to the same event.
Going directly to the overt act on which defendant was
convicted, the error was prejudicial. That is especially
true in view of the fact that the jury acquitted on Overt
Act 5 — the preparation of script for the same broadcast,
but which was supported by the testimony of Oki and
Mitsushio alone. {Oki, IX-677:21-681 :11 ; Mitsushio, XT-
968:16-974:15.) The additional witnesses evidently made
the difference between acquittal on Overt Act 5 and con-
viction on Overt Act 6. The jury had once reported in-
ability to agree. (LIV-6009:12-13.) It cannot be said that
the above error did not tip the scales in favor of the
prosecution.
2. MISCONDUCT OF PROSECUTOR.
The prosecutor twice misstated the evidence respecting
Overt Act 6 in his arguemnt to the jury. The record
affirmatively shows that the jury were influenced by this
misstatement.
At II Arg. 303-5, the prosecutor talked about Overt
Act 6. He said, among other things :
II Arg. 303:14-20: ^^That was in October 1944.
Overt act 6. She unliesitatingly, uncfjui vocally, de-
nies broadcasting those words or anything like it.
135
Well, yon can understand wliy she refuses to admit
the voicing of that broadcast. The governmeM has
produced not two witnesses, hut five, who contradict
her testimony. Mitsnshio, Georf/e Mitsushio, Ken-
kichi Oki, Satoshi Nakamiira, Clark Lee and Richard
Henschel. ^ '
At II Arg. 329 :2-5 the prosecutor said again :
'^Now this testimony from five witnesses that the
defendant broadcast the incident about American ship
losses after Leyte Gidf, concerning which tive govern-
ment witnesses testified * * *"
Defendant assigned the statements on pages 303-5 as
misconduct and asked that the jury be instructed to dis-
regard them. (LIV-5940:3-S.) We made no separate as-
signment as to the statement on II Arg. 329, w^hich came
later. The judge gave no admonition but simply threw
the matter back into the laps of the jury. (LIV-3940:9-
10.) It will be remembered that Oki and Mitsushio (as
well as Nakamura) testified that Overt Act f) was made
in connection with the Battle of Leyte Gulf. The prose-
cutor correctly quotes Clark Lee's testimony that he in-
terviewed defendant relative to a broadcast in connection
with the so-called ''Battle of Formosa''. This is evi-
dently not ''the same overt act''. But the vei*y fact that
the prosecutor names Clark Lee as a fifth witness to Overt
Act 6 amounts to saying that Lee did testify to the same
overt act as Oki and Mitsushio. Any doubt u])on the sub-
ject is dispelled by the quotation from page 329 — that
five witnesses testified *'that the defendant broadcast the
incident about American ship h)sses after Leyte Gulf'\
This is a clear implication that Clark Lee testiiied that
the defendant told him about a supposed broadcast in
136
connection with the Leyte Gulf battle. As .such it is a
barefaced misstatement of the record. Authorities (cited
below) have often held that Courts will infer prejudice
from this type of misconduct. In the present ease the
conclusion need not be rested on inferences — we have the
rare phenomenon of an affirmative expression of what the
jury were thinking during their deliberations. Both sides
had stipulated to send transcripts of the testimony into
the jury room on request. ( LI V-6001 : 12-6002:4.) One of
the requests for transcripts was worded as follows :
(LIV-6001 :5-8) "Would it be possible for the jury
to examine in the jury room the transcripts of the
testimony of the following relative to overt acts 5
and 6:
*Tlark Lee, Oki, Mitsushio".
This request shows that the jury accepted the prosecu-
tor^ s misstatewent that Clark Lee testified to the same
overt act as Oki and Mitsushio.
It is hardly possible to have stronger proof that the
prosecutor^ s misconduct ivas prejudicial.
But even this is emphasized by the facts that the jury
were out four days (from 11:45 A.M., September 26, LIV-
5942, 5995:8-9, to 6:04 P.M., September 29, LIV-6013:12,
6016:10-11) and by the fact that at the end of the second
day they reported themselves unable to agree. (LIV-6009:
12-13.) It is further emphasized by the argument that
Henschel was a fifth witness to Overt Act 6. Henschel
claimed that he heard the defendant's voice over the radio
somewhere between 9 and 11 P.M. Philippine time.
{Henschel, XXVl-2960 :25, 2988:14-16.) 9-11 P.M. Philip-
pine time was 10-12 P.M. Tokyo time. It is obviously
137
absurd to say that a witness who testified he heard the
defendant between 10 P.M. and midnight corroborates the
same overt act described by another witness who says he
heard her between 6 and 7 P.M. The fact that the prose-
cution felt forced to make such a ridiculous arp:ument
discloses the weakness of their case.
Under these circumstances the ])rosecution's misrepre-
sentation of Clark Lee^s testimony is in itself reversible
error. It is well settled that statements in argument which
are outside or contrary to the record require a reversal.
Berger v, U. S., 295 U.S. 78, 84 (misstatement of evidence
in questions); Taliaferro v. U. S., 47 F. (2d) f)99 (state-
ment outside of record) ; followed in M inker v. U. S., 85
F. (2d) 425, 426-7 (CCA. 3): Beck v. U. S., 33 F. (2d)
107, 114; U. S. V, Nettl, 121 F. (2d) 927, 930. In Pierce
V, U. S,, 86 F. (2d) 949, 953, it was said, ''that it was
intended to prejudice the jury is sufficient <j;round for a
conclusion that in fact it did so".
The judge's statement that the jury were the judges
of the evidence, is of course no instruction to disregard.
Cf. Taliaferro v. U. S., 47 F. (2d) 699, 701, where it is
said that the trial judge cannot be expected to have all
the evidence in mind, but that a judgment will be re-
versed where the defendant makes the pro])ci' assignment
and request, and the trial judge fails to rule on it; also
People V, Satichez, 35 A.C 565, 572-3, where th(^ Supreme
Court of California recently discussed inadecpiate in-
structions to disregard misconduct.
The misstatement of evidence respecting Overt Act 6
was therefore unciuestionably prejudicial. The jury showed
affirmatively that they accepted the misstateiiK^nt : tliev
138
convicted on Overt Act G alone; they had difficulty in
reaching any verdict. The foregoing misconduct in itself
requires that the judgment be reversed.
D. CONFESSIONS OF DEFENDANT.
The prosecution introduced several confessions of the
defendant. All, we submit, were inadmissible. These con-
fessions fall into four classes: (1) Exhibit 24, a long state-
ment taken by agent Tillman of the F.B.I. ; (2) Exhibit
15, Clark Lee's notes of an interview with defendant,
which she later signed in the presence of J. B. Hogan
of the Justice Department and Harry Brundidge; (3) Ex-
hibit 2, a piece of Japanese paper money with the defend-
ant's signature and the words ^* Tokyo Rose" in her hand-
writing; (4) the oral confessions.
1. EXHIBIT 24.
a. Exhibit 24 was taken by F.B.I, agent Tillman on
April 30, 1946 (it was introduced at XIV-1457). At that
time defendant had been incarcerated continually since
October 17, 1945. (See statement of facts in part I-B of
this brief, giving transcript references on her imprison-
ment.) She had been in the custody of the army from
October 17, 1945, to April 29, 1946. On April 29, 1946,
she was turned over by the army to the Department of
Justice, for purpose of interrogation by agent Tillman,
(Def. Exh. 0, XV-1586.)
A confession taken under these circumstances is inad-
missible under the rule of McNabb v. V, S., 318 U.S. 332
and Upshaw v, U. 8., 335 U.S. 410. This is true both be-
139
cause those cases forbid takin.c: a confession after such
long incarceration, and because they forbid holding a
defendant for purposes of investigation. {Upshair r. T\ S.,
335 U.S. 410, 414.) U. S. v. Haupt, 136 F. (2d) 661, 666-
71 (CCA. 7), a treason case, was reversed for violation
of the McNahb rule. The Court held that point alone
sufficient to require a reversal. (1.36 F. (2d) 661, 671, col.
1, ft.)
So far as the long confinement is concerned, it is imnna-
terial that the detention before April 30, 1946, was by the
military authorities rather than the De])artment of Jus-
tice. The army is just as much a branch of the govern-
ment as is the Justice Department. Furthermore, the
military authorities are under the same re(juirement to
give a speedy trial as are the civil authoiities. Sec 10
U.S.C 1542, which provides inter alia:
*^ Where any person subject to military law is
placed in arrest or confinement ivi mediate steps \nll
be taken to try the person accused or to dismiss the
charge and release him."
The identical provision was contained in the section
before the 1948 amendment. (See first sentence of par. 4
of old section 1542.)
The situation is therefore the same for confinement by
the military and the civil authorities. The logic of the
McNahh decision applies equally in either case.
On the motion for bail, the govcrniiK^nt aigiicd thai
there were no United States Courts in Ja))an. But that is
beside the point. The detention in 1945-0 iras not for the
purpose of taking her before a court in the United Stoles.
She was arrested in Japan and released in Japan.
140
The absence of United States Courts in Japan would
probably justify the detention necessary to bring defend-
ant before a Court in the United States. But it does not
justify holding her indefinitely in Japan with no move to
bring her before any Court; nor does it justify holding
her ^^for interrogation ' \
Under the rule of McNahh v. U,S,, 318 U.S. 332, Upshaw
V. U.S., 335 U.S. 410, and U.S. v. Haiipt, 136 F. (2d) 661,
the admission of Exhibit 24 was error.
b. Even apart from McNahh v. U.S., 318 U.S. 332, and
Upshaw V. U.S., 335 U.S. 410, the admission of Exhibit 24
wag( error because the government made no attempt to lay
a preliminary foundation of voluntariness. We discuss the
law on this question in connection with the other confes-
sions, infra.
c. Admission of Exhibit 24, was in itself prejudicial.
The authorities hold that an improperly admitted confes-
sion will be treated as prejudicial without, more. McNahh
V. U.S., supra, Upshaw v. U.S., supra, and especially the
Haupt case, 136 F. (2d) 661, 666-71, supra. It has been
held expressly that the partially exculpatory character of
the statement makes no difference. {Bram v. U.S., 168
U.S. 532, 541, followed on this point in Ashcraft v. Ten-
nessee, 327 U.S. 274, 278.)
But the prosecution made plenty of use of Exhibit 24,
in cross-examining the defendant. The cross-examination
is based upon this exhibit at the following parts of the
record: XLVIIl-5325-8, 5335-7, XLIX-5457 (dealing with
the subjects of the Japanese purpose of the Zero Hour,
duress, and double meanings in the scripts). Admission of
Exhibit 24 requires a new trial.
141
2. EXHIBIT 15.
Exhibit 15 (admitted at VIII-615) was Clark Lee's notes
of an interview with defendant, which defendant was later
induced to sign by J. B. Hogan of the Justice Department
and one Harry Brundidge.
It was inadmissible on three grounds :
(a) The government failed to lay a ])reliminary foun-
dation of voluntariness; (b) the record shows without con-
tradiction that it was in fact secured both by inducement
and coercion; (c) the record shows that the exhibit vio-
lates the rule of Upshatv v. U,S,, 335 U.S. 410, because the
defendant signed it when she was under arrest /or the
purpose of (jetting her signature. We take these grounds
in order.
a. The G-ovemment failed to lay a preliminary foundation of
voluntariness.
(1) The signing of Exhibit 15 is related by John B.
Hogan at VIII-609-615. He gives no testimony one way
or the other as to whether any inducements were offered
to defendant, whether she was instructed regarding her
right to counsel or her right not to sign the document.
There is a question on coercion. (VIII-613 :13-17.) The
witness says that defendant "was brought into General
Headquarters from her home by the Army at my lequest"
(¥111-610:15-16) and that he ''dared" the defendant to
sign the document (VIII-611 :25-612:l ) :
"I then asked her if she would dare to sign it and
she said she would. '*
In short, the i)rosecution made no attempt to show that
the defendant signed freely and voluntarily without cilhcr
142
induce^nent or coercion. The circuits are in conflict as to
whether the government must make preliminary proof of
voluntariness before introducing a confession. The Su-
preme Court has said by dictum that the prosecution must
show that the confession was voluntary. See Mangum v.
U. S., 289 F. 213, 215 (CCA. 9— before admitting confes-
sion trial Court nmst determine, as a preliminary question
whether free and voluntary) ; Litkofsky v. U. S,, 9 F. (2d)
877, 882 (CCA. 3 — government has burden of proving
voluntariness); Hartzell v, U. S,, 72 F. (2d) 569, 577
(CCA. 8 — no preliminary proof needed, citing Gray v,
U. S., 9 F. (2d) 337, CCA. 9) ; Ah Fook Chang v. U. S.,
91 F. (2d) 805, 809 (confession presumed voluntary). Tlie
Litkofsky and Ah Fook Chang cases cite Wilson v. U, S.,
162 U.S. 613, 622, for opposite conclusions.
The language of the Supreme Court is as follows :
Bram v. U. S., 168 U.S. 532, 549:
^^The rule is not that in order to render a statement
admissible the proof must be adequate to establish
that the particular communications contained in a
statement were voluntarily made, but it inust he suf-
ficient to establish that the making of the statement
was voluntary/^
This clearly implies that the government has the pre-
liminary burden of proof to show that a confession was
voluntary.
Compare also Hopt v. Utah, 110 U.S. 574, 587; and see 3
Wigmore on Evidence (3d ed.) sec. 860 for the five iniles
which exist on this point in different jurisdictions.
143
b. The record shows without contradiction that Exhibit 15 was
obtained both by inducements and coercion.
The takini; of Exhibit 15 has two phases. First is the
orii^inal interview with Clark Lee in 1945 at which Lee
took notes ; second is the signing of his notes by defendant
in 1948. Neither one was voluntary. We shall consider
the siting first.
(1) Uncontradicted evidence shows defendant was offered inducements
to sign Exhibit 15.
Tn March, 1948, J. B. Hogan of the Department of
Justice went to Japan to ^et defendant to sign (Mark
Lee's notes {Hogan, ¥111-609:18-15, 620:5-12). Harry
Brundidge went wath him, having offered his services to
the Department of Justice. The Government j)aid Brun-
didge's plane fare to Tokyo {Hogan, ¥111-619:4-19; 630:
18-631 :5). Hogan, Brundidge, defendant and a receptionist
were together in a room when Hogan ''dared" defendant
to sign the notes (Hogan, ¥111-610:17-20; 611:25-612:1).
Hogan says he does not know what passed between
Brundidge and the defendant at tliat time. {Hof/au, VlTl-
632:2-5, 634:15-20; L-5578:3-5.) Bnmdidge was on the
government's witness list (Exhibit 1, L33) hut teas no/
called. This leaves defendant as the sole witness to what
transpired between herself and Brundidge relative to the
signing of Exhibit 15.
Defendant testified, XLVU-522():22-25,
''Mr. Brundidge leaned over and told me 1 would
be doing myself a good deed by signing this inter-
view. 'If it is the interview given to Clark Lee,' he
said, 'it would aid you in getting back to the United
States,' and so 1 signed it."
144
This is a clear inducement, undenied by the prosecution,
though the prosecution had an opportunity to deny it, if it
was untrue.
In addition to Hogan's testimony that the Government
paid Brundidge's fare to Tokyo, the defense offered
Brundidge's travel orders and passport (Exhibits for
Identification, BQ and BR, L-5580) to show that Brun-
didge was then an agent of the Department of Justice, but
the Court rejected them. This we submit, was error (see
below, p. 207). But, in any event, Brundidge's inducement
was enough to invalidate the signing of Exhibit 15. All
three were in the same room. Bram v. U. S., 168 U.S. 532,
559, expressly left the question open whether inducements
by persons not in authority invalidated a confession. The
recent case of Lustig v. U. S,, 338 U.S. 74, indicates that
federal officers cannot separate their acts from those of
their temporary aides. There the actions of state officers
were involved in a search and seizure; certainly the same
rule must apply to one who accompanies the Department
of Justice agent at government expense, and talks to the
defendant in the same room w^hen the confession is signed.
Since the evidence is uncontradicted that the signature
to Exhibit 15 was obtained by inducement, the exhibit
should have been excluded.
(2) Defendant under coercion at original interview.
Clark Lee described the original interview at which he
took the notes which constitute Exhibit 15. He and Brun-
didge interviewed defendant together, right after the sur-
render of Japan. (Lee, VII-478:14-20, 479:8-11.) Both Lee
and Brundidge were in uniform. (Lee, VII-490 :25-491 :6 ;
145
492:22-24.) Lee was armed with a 45 revolver. (Lee, VII-
492:16-21.) In the hotel room when he interviewed de-
fendant, he either hung it in the closet or put it on the
table. (Lee, VII-516:15-20.) He locked the door of the
room during the questioning, (Lee, VII-531:8-21.)
Defendant was not advised of her legal rights, or of the
consequences of her statement, but after the interview,
the newspaper correspondents told her she ought to get an
attorney. (Lee, VII-520:23-521:20.)
We submit that any interview taken by armed soldiers
after locking defendant in the room with them is not ^ * free
and voluntary". For this added reason Exhibit 15 was in-
admissible.
c. Exhibit 15 violates the rule of Upshaw v. U.S., 335 U.S. 410,
in that defendant was arrested illegally for the purpose of
getting her signature.
Hogan testified that when he wanted defendant's sig-
nature he had members of the army bring her from her
home to General Headquarters for that purpose. This was
done without any warrant.
See Hogan, VIII-610:13-16, and VIII-621 :15-21,
^'Q. You had requested some military authorities
to send for her, isn't that correct?
A. Yes.
Q. Of whom did you make that request?
A. I made it to the same officer, the director of the
civil intelligence section to a junior officer who had
been assigned for liason man for me."
Vlll-623 :2-7 :
"Q. In other words, the defendant was fetched to
the room in the Dai Ichi Building by the army au-
thorities ?
146
A. Yes, in an army vehicle.
Q. She was brought there on a specific request of
yours made to the army?
A. Yes/^
¥111-627:18-21:
'^Q. No process was issued for the arrest of de-
fendant at that time save and except your oral request
addressed to the personnel director of that army head-
quarters ?
A. That's correct.''
This shows that, in effect, the defendant was arrested
and brought from her home to General Headquarters to
secure her signature. And the arrest was without warrant
— wholly illegal.
Upshaw V. U. S., 335 U.S. 410, holds that a confession
is illegal if taken tvhile the defendant is held for investiga-
tion. That is precisely what happened when defendant
signed Exhibit 15. It is for that reason inadmissible.
d. The prejudicial effect of admitting Exhibit 15 is
governed by the same principles as Exhibit 24. Exhibit 15
was used in cross-examining the defendant at XLIX-5401,
and 5408. The IT. S. attorney read at length from it in his
argument to the jury. I Arg. 22:13-28:5.
e. Simimary. Exhibit 15 was secured by the induce-
jaent of telling defendant that she had a better chance to
get back to the United States if she signed it. Hogan had
her arrested \vithout warrant by the Army and brought to
General Headquarters for the purpose of getting her sig-
nature. For both of these reasons the signed document
was inadmissible. Clark Lee testified that the original in-
14"
terview was obtained by locking defendant into a room
with liimself and Brundidge, both being in uniform, and
Lee being armed with a .45. The government (apart from
one question on coercion) made no preliminary showing
that either the interview or the signature were wholly free
and voluntary. For all these reasons Exhibit 15 was inad-
missible. Letting it in is an error w^hich requires reversal
of the judgment.
3. EXHIBIT 2.
Exhibit 2 (1-37) is a piece of Japanese paper money
signed by the defendant and having the words ^* Tokyo
Rose" on it in her handw^riting. The words '* Tokyo Rose"
written by defendant constitute a confession (we discuss
the identification of defendant as '* Tokyo Rose" infra).
a. In the first place the government made no prelimi-
nary proof of voluntariness. {Eisenhart, 1-35:17-37:18.)
b. In the second place, the government's own proof
showed that the signature was obtained when defendant
had been in prison for a month or six weeks, thus violat-
ing the rule of McNahb v, 11. S., 318 U.S. 332. (Eisenhart,
1-41:11-16, 42:1-12.)
c. Far from being voluntary. Exhibit 2 was obtained
from defendant by her jailer. {Eisenhart, 1-53:14-20.)
She testified that she was badgered in jail, ])revented from
sleeping, her lights turned on and off, until she signed it.
(Defendant XLVI-5167:11-5169:17.) The only prosecution
evidence on this ])oint was that Eisenhart said it did not
happen to his knowledge. {Eisenhart, 1-47:12-15.) She was
admittedly not advised of her rights before signing.
{Eisenhart, 1-51:20-52:1.)
148
d. The fact that the Government opened its case with
Exhibit 2 shows the importance attached to it. Admis-
sion of the exhibit was prejudicial both for this reason
and under Bram v. U. S., 168 U.S. 532, 541.
e. Summary. According to the Government's own evi-
dence, Exhibit 2 was obtained in violation of the McNahh
rule. According to defendant it was obtained also by
specific coercion. Defendant was not advised of her rights
when she signed it. The government made no attempt to
lay any preliminary foundation of voluntariness. Admis-
sion of the Exhibit was prejudicial error.
4. THE ORAL CONFESSIONS.
Four soldiers testified to interviews with defendant in
which she talked about her broadcasting activies. (Kramer,
Keeney, Page, Fennimore.) All these interviews were in-
duced by one sort of pressure or another. None was
wholly free from inducement and coercion as required of a
confession used as evidence in court. These statements
were taken for newspaper purposes, and as newspaper
material they were perhaps unobjectionable. But the
prosecution chose to use the interviews as legal evidence.
They must therefore stand the test of legal evidence or be
excluded from the record.
a. Kramer.
Kramer's testimony covers two interviews and begins at
XIII-1343. Two circumstances make defendant's state-
ments to him inadmissible.
First, Kramer was uniformed and armed when he inter-
viewed defendant. {Kramer, XIII-1370:15-23; 1379:19-23.)
149
Second, the defendant originally refused to talk to
Kramer. {Kramer, XIII-1375:20-25.)
''Q. Was she told at that time and place that she
had the right to remain silent?
A. Well, sir, she refused to talk to me at first.
Yes, that was true, that 1 urged her to give me an
interview, but I certainly said it was not necessary
for her to, and therefore to remain silent was quite
legal and so forth."
Kramer '* persuaded" her to talk by telling her that she
owed it to Yank Magazine to give an interview {Kramer,
XIII-1387:10-14):
^^Q. Didn't she state at that time and place that
she felt she owed it to the Yanks Magazine to grant
you an interview?
A. I stated she owed it to the magazine, and she
agreed.
Q. And she gave you these interviews!
A. That's right."
Certainly when an armed and uniformed soldier from an
invading army tells a defendant that she ''owes'' an in-
terview to his paper, her acquiescence after previous ob-
jection is not ''free and voluntary" under the rules of
civilian criminal law.
Furthermore, the correspondents had told defendant
that she better give an interview or be almost hounded to
death. This phase is detailed by Keeney, infra, who testi-
fied to the same conversations as Kramer.
All of these facts were testified to by the government
witness himself. It show^s that defendant's confession to
him was not free and voluntary. (See review of law in
150
Bram v. U. S,, 168 U.S. 532.) Admitting the confession
was reversible error.
b. Keeney.
Keeney's testimony begins at XIV-1399. He went with
Kramer, driving him out to the defendant's house.
(Keeney, XIV-1401:l-2.) Since he testified to the same
conversations as Kramer, his testimony is inadmissible for
the same reasons. Keeney testified that both he and
Kramer were armed. (Keeney, XIV-1408:19-1409:1.)
In addition, he gives the background of another inter-
view^ which took place on September 4, 1945 (between the
second and third interviews which Kramer and Keeney
had with her). It shows still more threats brought to bear
on defendant to make her talk (Keeney, XIV-1414 :14-25) :
^'Q. Didn't she state she owed it to the boys to go
down and tell them the history of her life?
A. No, we told her that it would he better for her
to present herself to all the correspondents and have
one interview rather than remain in seclusion at her
home and be badgered by correspondents, or be sought
out by them. We told her she woidd just be badgered
by correspondents if she remained in seclusion, that
it would be much easier or simpler for her to go be-
fore all of them.
Q. But you told her, you and Sergeant Kramer
were from Yank Magazine!
A. Yes, we told her that."
While this was directed particularly to the interview of
September 4, it must also have affected the defendant in
her interviews of September 3 and 5. A confession is
inadmissible if given under the influence of pressure used
151
to extort another confession. (2 Wharton's Criminal Evi-
dence (11th ed.), sec. 601, p. 998 ff; U. S. v. Cooper, Fed.
Cas. No. 14864, 25 Fed. Cas. 629, 631; see also People v.
Jones, 24 Cal. (2d) 601, 609, 150 P. (2d) 801.)
It follows that the testimony of defendant's statements,
given by Keeney was just as inadmissible as that given
by Kramer.
c. Pagfe.
Page's testimony begins at XIV-1419. He came in an
even more clearly official capacity than Kramer and
Keeney; he was a sergeant in the Counter Intelligence
Corps. (Page, XIV-1422:18-20.) He interviewed the de-
fendant on September 6, 1944 (Page, XIV-1422:8-10)— the
day after her series of interviews with Kramer, Keeney
and the other army correspondents.
The pressure exerted by Kramer, Keeney and the cor-
respondents who interviewed her on September 4th is pre-
sumed still to be operating on September 6th (see author-
ities supra). She was still in Yohohama, after having been
brought there by the army newspaper men. (Page, XIV-
1427:2-4, 1428:12-16.) Certainly if the defendant feels com-
pelled to give her story to the army press division, she
will feel equally compelled when the Counter Intelligence
Corps questions her a day or two later. And, as stated in
Bram v. U. S., 168 U.S. 532, 549, the test is not whether
the particular communication was voluntarily made, but
whether the making of the communication was voluntary.
It has been shown that defendant originally objected, to
giving a story, and later accjuiesced under pressure. There
is not one shred of evidence indicating that the same pres-
sure was not operative on September 6\ We have a clear
152
case where the making of the communication was not vol-
untary.
Admission of a confession under such circumstances
requires reversal of the judgment.
d. Pennimore.
Fennimore^s testimony begins at XIV-1433. He was
another member of the Counter Intelligence Corps. (Fen-
nimore, XIV-1433 :12-13.) He testified that he participated
in the same interview with Page. (Fennimore, XIV-1433:
18-20.) Since he testifies to the same interview as Page his
testimony is inadmissible for the same reasons.
5. SUMMARY.
The judgment must be reversed because all confessions
were erroneously admitted. Exhibits 24 and 2 were ad-
mitted in violation of McNabh v. U. S., 318 U.S. 332—
since the defendant had been imprisoned from one to six
months when they were taken. Exhibit 15 was admitted
in violation of Upshau) v. U. S., 335 U.S. 410, because de-
fendant had been illegally arrested for the purposes of
getting her signature. In addition, the signature to Ex-
hibit 15 was obtained by inducement and the original
statement was obtained when defendant was locked in a
room with armed soldiers. Exhibit 2 was obtained by
coercion as were the oral confessions. Erroneous admis-
sion of one confession has been held prejudicial ; erroneous
admission of five unquestionably requires reversal of the
judgment.
153
E. CROSS-EXAMINATION OF DEFENDANT.
The cross-examination of the defendant was one of the
most shameful chapters of the trial. Every form of im-
proper (juestion, every form of misstatement was indulged
in by the prosecutor. Despite objections thereto, all were
meekly permitted by the Court.
Defendant was on the stand six days. Her direct testi-
mony begins at XLIV-4909 and ends at XLVII-5235. Her
redirect appears at XLIX-5500-L-5539. Her cross-exam-
ination begins at XLVII-5235, and ends at XLIX-5499;
her recross (which contains the worst passage) covers ten
pages — L-5539-48. In general the errors fall into the two
classes already indicated: erroneous rulings by the Court
and misconduct of the prosecutor in misstating the evi-
dence. We divide the discussion accordingly.
1. ERRONEOUS RULINGS ON EVIDENCE.
a. Making defendant pass on truthfulness of other witnesses.
At XLVII-5249 is the first of a series of argumentative
questions, all of an identical type. There were so many
that we missed making objections to some. But in view
of the Courtis ultimate ruling in favor of the prosecution,
this became unimportant. (Where objections to a line of
questions are repeatedly overruled, it is not necessary to
object to every question. Wilson v. U.S., 4 F. (2d) 888,
889.)
XLVII-5248 :25-5249 :1 :
' ' Q. And after you were married, you told Chiyeko
Ito that you were still an American?''
XLVII-5249 :6-12:
''A. I didn't tell her anything about my citizen-
ship status.
154
Q. You heard her testify here that you did tell
her that, didnH youf
A. Yes.
Q. She was in error, wasn^t she?
A. Her recollection was wrong.
Q. Her recollection was wrong under oath . . .'^
It is improper to ask one witness to pass on the truth
or falsity of the testimony of another witness.
State V, Schleifer, 102 Conn. 708, 130 Atl. 184, 191;
State V. Bradley, 134 Conn. 102, 55 Atl. (2d) 114, 120;
Williams v. State, 17 S.W. (2d) 56, 58 (Tex. App.) ; Tem-
ple V, Duran, 121 S.W. 253, 255 (Tex. App.); Cf. Mc-
Dowell V. U.S., 74 Fed. 403, 407 (improper to cross-exam-
ine witness on another person ^s statement).
While the direct authorities on the question are scant,
the point can easily be reasoned out. Evaluation of the
testimony of witnesses is the special function of the jury.
It is they who have to draw the conclusion whether each
witness is correct, inaccurate or lying. It is distinctly not
a subject for opinion evidence from any witness. So when
the cross-examiner asks one ivitness whether another wit-
ness is in error he is asking the witness to draw precisely
the conclusion which the law specially commits to the jury.
A more flagrant example of ^^ calling for the conclusion
of the witness" can hardly be imagined.
We discuss, infra, the prejudicial effect of this type of
examination. The same method is tried again at XLVII-
5258 :21-5259 :15. Here the Court s^istaified an objection,
as it did a few times afterwards. But the prosecutor kept
using the same mode of interrogation and seems to have
overwhelmed the trial judge by sheer force of repetition.
155
For after a while the judge reversed himself and then
overruled objections to such questions throughout the rest
of defendant's cross-examination.
At pages 5295-6 we have the following (XLVII-5295:
16-18, 24-5) :
''Q. All right. Didn't Mr. Hogan tell you that you
did not have to make any statement!
A. No I don't recall Mr. Hogan telling me that.
* * «
Q. Will you say that he didn't make such a state-
ment to youf
A. Yes/'
XLVII-5296 :6-7 :
*^Q. You heard him testify he did, didn't you?
A. 1 have forgotten that part of it."
At pages 5301-2 this method of questioning is used
directly in connection trith Overt Act 6 (XLVTI-5301 :21-
5302:8):
'*Q. Somebody told you or suggested that you
should broadcast about loss of ships, is that right!
A. Oh, no, not to me.
Q. Not to you. Well, yon heard Mr. Nakamura
testify that yon broadcast about the loss of ships,
didnH you?
A. Yes, I did.
Q. His testimony is false, wasn't it?
A. He said the Battle of Leyte, and 1 don't know
anything about the Battle of Leyte.
Q. I say his testimony was false that you broad-
cast about the loss of ships, wasn't it?
A. / don't know whether J am in the position of
saying anybody's testimony is false."
156
Defendant's last answer highlights the impropriety of
asking this type of question. It also shows its prejudicial
effect. The defendant is asked a question which is not for
her to answer (being solely for the jury) and so is made
to look helpless and at a loss. Such an effect cannot hut
hurt her case in the eyes of the jury.
At XLVIII-5321 :24-5322 :8 :
(See Appendix p. 19.)
Note the insistent, badgering repetition of the improper
question. There was more of the same on page 5340, with
an embellishment in the form of misquoted testimony.
XLVIII-5340:13-5341:1:
^*Q. You heard Mr. Eisenhart testify that he
didnH ash you, didnH youf
A. He didn't get it from me, Mr. DeWolfe.
Q. DidnH you hear him testify that he did get it
from you and didnH ash you for the 'Tohyo Rose'
on it?
Mr. Collins. Now just a moment, Mr. DeWolfe.
There is no such testimony in this record.
Mr. DeWolfe. There is such testimony in this
record.
Mr. Collins. There is no such testimony in the
record.
Mr. DeWolfe. Q. Didn't you hear him so testify?
A. I don't believe he said that.
Q. You don't!
A. I believe he said that he got it from some other
soldiers who got it from me."
Eisenhart had, in fact, testified that he asked another
soldier to get Exhibit 2 from the defendant, not that he
had gotten it himself. {Eisenhart, 1-35:23-36:6, 52:19-53:
13, 54:1-7.)
157
At XLVIII-5359:17-21, the Court once more sustained
an objection to this type of question. Nevertheless on the
very next page, the prosecutor asks the same kind of
question again, and combines it with a misstatement of
the record.
XLVIII-5360:4-23:
^^Q. What did you get at the end!
A. Between 130 and 135.
Q. At the end in 1945!
A. That is correct.
Q. 135!
A. Yes, that is correct, at the most.
Q. How much allowance!
A. No allowance whatsoever, absolutely no allow-
ance.
Q. Did you hear Mr, Yamazaki testify that you
got 180 yen a month?
A. Yes, I heard him testify.
Q. He is wrong y is he?
A. He is wrong.
Mr. Collins. Mr. DeWolfe, if you refresh your
recollection by the transcript, you will find that that
was subject to a 20 or 25 per cent tax.
Mr. DeWolfe. Speak to the jury.
Mr. Collins. You should not distort the facts, at
least.
The Court. Keep in mind the jury heard the facts.
Let them determine what the facts are."
Yamazaki had testified that defendant's 180 yen salary
was subject to a tax of perhaps 20%. (Yamazaki, XXV-
2797:19-2798:19.) // 25% is deducted from 180 the re-
mainder is 135.
At XLVin-5362:19-5363:23 and 5365:7-11, the prosecu-
tor again asks this kind of question — and the judge sus-
158
tains an objection to it, for the last time. The prosecutor,
nevertheless, keeps right on Avith the questions and the
Court changes its rulings. This new phase begins on
pages 5368-9,
XLVIII-5368 :12-5369 :15 :
(See Appendix p. 20.)
From now on, interrogatories of this type just pour in,
and the Court overrules all objections to them.
Next is the incident at pages 5370fP. (The transcript
pages are out of order here: the page numbered 5381
should follow 5370.) It is so long that we print it in the
appendix. XLVIII-5369 :22-5370 (all), 5381:1-25, 5371:1-
5372:1. (Appendix pp. 22-4.)
Here we have more of the same hammering insistence
on an improper question. And now it is with full approval
of the Court (the direct question ^^He was in error f was
not asked here. But the questions which were asked were
designed for the same purpose).
Next we find at XLIX-5395 :25-5396 :9 :
(See Appendix p. 21.)
And at XLIX-5397 :l-5398 :2 :
(See Appendix p. 21.)
The cross-examiner now has the hit in his teeth. The
Court permits the improper questions, and they are
pounded at the defendant in endless reiteration.
A whole series of such questions appears at XLIX-
5403-5410. We print them in the appendix, pp. 24-7.
Again at XLIX-5427 :24-5428 :20 :
**Q. Can you recall attending a party shortly
prior to her marriage?
I
159
A. No.
Q. At the radio!
A. No, I didn't even know she was going to get
married.
Q. You heard Muriyama testify that you were
there at that party, didnH youf
Mr. Collins. Well, I will object to that on the
ground that that is improper cross-examination of
this witness on matters that have not been developed
on direct examination, and on the further ground that
it is an improper attempt to impeach this witness by
the testimony alleged or claimed by Mr. DeWolfe to
have been given at this trial by another witness.
The Court. Objection overruled.
Mr. DeWolfe. Given by three witnesses.
Mr. Collins. It wouldn't make a bit of difference.
It is improper impeachment.
The Court. Let the witness answer the question.
Read the question, Mr. Reporter.
(Question read.)
A. I think, yes, I think it was Muriyama that said
that."
At pages 5436-7 this objectionable mode of examination
is again used with direct reference to Overt Oct 6. It is
interlarded with arguments by the prosecutor and capped
off with a demand that the witness say whether other
witnesses ''are wrong' \ XLIX-5436 :4-5437 :24.
''Q. Didn't you broadcast in 1944 in substance:
'Now, you fellows have lost all your ships. You really
are orphans of the Pacific. How do you think you will
ever get home now?'
Mr. Collins. I object to that on the ground that
question was propounded to the witness yesterday
and the answer was given. It is repetitious.
160
The Court. The objection will be overruled. The
witness may answer.
A. No.
Mr. DeWolfe. Q. You heard Nakamura, Mitsu-
shio and Oki testify you did broadcast that, didn't
you?
Mr. Collins. I object to that on the ground it is
improper cross-examination of the witness on a mat-
ter not developed on direct examination; on the
further ground, it is an improper attempt to impeach
the witness on statements supposedly made by other
persons who testified in this case.
Mr. DeWolfe. The statement was made and testi-
fied to,
Mr. Collins. I ask that the remark of counsel be
stricken from the record and the jury admonished to
disregard it. I assign it as misconduct on the part
of the prosecution to make such a statement.
The Court. The objection is overruled. The wit-
ness may answer. Read the question.
(Question read.)
A. Yes, I believe I did.
Mr. DeWolfe. Q. They are wrong, aren't they 9
Mr. Collins. I submit, if Your Honor please, that
is an improper attempt to impeach the witness by the
so-called testimony of a witness for the prosecution
in this trial. Furthermore, it is improper cross-
examination of this witness, and I object to it on the
further ground it is calling for an opinion and con-
clusion of the witness.
The Court. The objection is overruled.
Mr. DeWolfe. Q. They are wrong, aren't theyf
Mr. Collins. 1 will reiterate my objection to this
new question propounded by counsel.
The Court. Are both sides through?
Mr. DeWolfe, Yes, sir.
161
The Court. Read the question.
(Question read.)
The Court. Answer.
A. You mean the three!
Mr. De Wolfe. Q. The three wrong,
A. / can't say what is ivrong and what is right.
All I know is T did not make any broadcasts of that
nature. ' '
Of course, the defendant '^ can't say what is wronp: and
what is right". That is for the jury. Yet this improper
method of cross-examination has the effect of making the
defendant look beaten and without a satisfactory answer
regarding the very broadcast which alone sustains the
conviction. As we said in discussing Overt Act 6 above,
where the jury had such difficulty in reaching a verdict,
errors which go directly to Overt Act 6 must be held
prejudicial. That is especially true since the above error,
bad enough in itself, is cumidated to the erroneous in-
struction and misstatement in argument already consid-
ered, with which we dealt before.
Another wave of such questions follows, which we like-
wise print in the appendix. (See Appendix pp. 27-36.)
From XLIX-5460-67 there are eight solid pages in which
this objectionable form of examifiation is used almost
without a break. There is so much at this juncture that
we set it forth in the appendix. (Reference above.)
This form of error now enters a new stage. The Court
joins in and begins asking questions of the very type to
which it had originally sustained objections. (XLlX-5462:
6-7.)
At XLIX-5473-5 we again have the improper question
coupled with a misstatement of the record:
162
XLIX-5473 :20-5474 :12, 5475 :l-20, see appendix p. 36.
Tillitse, the Danish Minister (E. 806) had not testified
that a bonus was the Japanese custom, but that it was the
custom in Japan. (Tillitse, R. 807.)
At XLIX-5477 the objectionable question is used again.
(See Appendix, p. 38.)
And once more at XLIX-5490 :17-5491 :14 :
**Q. After November 1943 and until he was off the
Zero Hour, he prepared the part of the script that
you voiced into the microphone?
A. Yes.
Q. Did you hear him testify that he never pre-
pared any portion of the script that you were to read?
Mr. Collins. Object to that on the ground that that
is improper cross-examination of the witness upon a
matter not touched upon on direct examination, on the
further groimd it is an attempt to impeach the wit-
ness by testimony of another witness given at this
trial and on the further ground that no such testi-
mony was elicited from the witness Ince on the stand,
who identified his own handwriting on a portion of
the script. ^
Mr. De Wolfe. It is volume SI, page 3533 in the
transcript,
Q. Did you hear Ince so testify, that he never
prepared any portion of the script which you broad-
cast!
Mr. Collins. I submit my objection, if your Honor
please.
The Court. The objection will be overruled, the
witness may answer.
A. I canH say for sure, but he did prepare \mri
of it.
Q. You can't say whether you heard him testify
that he didn't, can you?
A. I can't say for sure, no."
163
Here we have another example of the insistent repeti-
tion of this kind of objectionable question. Furthermore,
the prosecutor again misstates the record. While Ince
said generally that he did not prepare defendant's scripts,
he made the express exception that he ''rehashed" some
of Cousens' scripts when Cousens was not able to. (See
Ince XXXI-3533:2-ll):
(See Appendix p. 39.)
The foregoing misstatement is especially reprehensible
since the above answers were extracted from Ince by the
prosecutors themselves on cross-examination.
This review shows a continuous stream of the same type
of improper questions — extending, all in all, over 240
pages of the record, from XLVII-5249 to XLIX-5491. Such
a relentless reiteration of error is necessarily prejudicial.
While the authorities cited, see page 154, supra, held the
error nonprejudicial a different situation exists here.
Where the same type of question is used so often it can
only be because the prosecutor considers it effective. And
to say that an error is ''effective" is to say that it is
prejudicial. The words of Pierce v. U. S., 86 F. (2d) 949
have unparalleled force when the prosecution employs the
same method as often as it has done here (p. 953) :
"That it was intended to prejudice the jury is
sufficient ground for a conclusion that in fact it
did so."
All this was aggravated because the prosecutor used this
objectionable method in cross-examining on Overt Act G.
We submit that these 240 pages of improper cross-exam-
ination of the defendant in themselves require reversal of
the judgment.
164
b. Improper cross-examinatian on Overt Act 8.
At XLIX-5439-46 comes improper cross-examination on
Overt Act 8, Defendant testified on direct examination
only with regard to Overt Acts 2, 3, 5, 6 (Defendant,
XLVI-5119-25.) Cross-examination as to others was there-
fore beyond the scope of the direct and improper. (See
authorities below.) Similar improper cross-examination on
Overt Act 1 occurred at XLIX-5412-18 and on Overt Act 4
at XLIX-5427-34. But it is the cross-examination on Overt
Act 8 which is prejudicial despite the jury\s finding in
favor of the defendant. That is so because in argument
the prosecutor used this cros-examination to impeach de-
fendant's entire testimony, I
Since the cross-examination on Overt Act 8 occupies
seven pages of the record we set it forth in the appendix.
(XLIX-5439:17-5446:11, App. p. 39.) The key appears
right in the first question, however (XLIX-5439:1 7-5440:
19): ,
**Q. Did you appear in this hat dialogue that you
heard testimony about! Do you know what I am
talking about?
Mr. Collins. Just a moment. We object to that, if
Your Honor please, upon the ground it is improper
cross-examination of the witness upon matters that
were not touched upon on the direct examination of
this witness.
The Court. The objection will be overruled. Read
the question.
(Question read.)
Mr. Collins. If Your Honor please, I wish now to
assign this as constituting misconduct on the part of
counsel for the prosecution knowingly to cross-exam-
ine this witness or attempt to cross-examine tliis
witness on matters that were not developed on her
direct examination.
165
The Court. The Court is responsible for the rul-
ings here. No one else is. You have a record. Now
let us proceed in the usual way. Reframe your ques-
tion and let us proceed.
Mr. DeWolfe. Q. Did you participate in a dia-
logue with George Mitsushio about a hat?
Mr. Collins. Since the question has been refrained,
|r I \\dsh now to interpose my objection again, if Your
' Honor please.
The Court. The objection mil be overruled.
Mr. Collins. I object to it on the ground it is im-
proper cross-examination of the witness on matters
not developed upon her direct examination.
The Court. The objection is overruled.
Mr. DeWolfe. Overt Act 8, sir.
The Witness. I can 't recall that dialogue. ' '
The prosecutor later made the following argument on
the basis of this cross-examination (II Arg. 337:23-339:
13, note especially II Arg. 339:9-13):
(See Appendix p. 45 for II Arg. 337:23-339:8.)
II Arg. 339 :9-13 :
'^She denies that. And if you find that she is teUinfj
you an untruth about that incident, that is a material
incident, that is one of the overt acts. Yon can, if you
want to, in that instance disregard the balance of her
testimony in its entirety; vjhether or not you want to
is up to you. * * *^^
This attempt to discredit defendant's entire testimony
gives the incident significance far beyond Overt Act 8
itself. If the cross-examination was improper, it was also
prejudicial.
The prosecution could not cross-examine on Overt Act cS
when the defendant herself had not testified upon it. This
166
is true both because of the rule limiting the cross-examina-
tion to the scope of the direct, and because of the privi-
lege against self-incrimination. The object of cross-exam-
ination is to break down the direct testimony ; if a defend-
ant does not testify on a subject there is nothing to break
down. Cross-examination of the defendant cannot he used
to establish independent elements of the prosecution's
case. If the defendant testifies to only certain elements of
the charge, the prosecution cannot cross-examine on other
elements. See Tucker v, U. S,, 5 F. (2d) 818 (CCA. 8),
at p. 822 :
^*The primary purpose of cross-examination in the
federal courts is to test the truth of testimony adduced
by direct examination and to clarify or explain the
same. It is not to prove independent facts in the case
of the cross-examining party,
**If there is good reason why a defendant should
not be compelled to be a witness against himself,
there ought to be equally good reason why, if he has
testified voluntarily upon one issue, he should not be
compelled to testify against his will concerning mat-
ters wholly unrelated to that issue, which would not
be within the scope of proper cross-examination if he
were an ordinary witness.
(p. 824) :
* ' The questions asked the witness Dudley Tucker on
cross-examination were clearly outside the scope of
his direct testimony. They had reference to the sec-
ond element of the offense charged while his direct
testimony was limited to a refutation of the first ele-
ment. The questions on cross-examination did not in
any way test the truth of the direct examination ; they
did not seek to explain or modify the same ; they were
167
asked for the sole purpose of proving an independent
element in the government's case.
• ***•••
'*For the reasons above stated, the cause is re-
versed * * *'»
This language applies exactly to the present case. The
defendant testified with regard to Overt Acts 2, 3, 5 and
6. (The defense as to Overt Act 8 was that it was trivial.)
Cross-examination with respect to Overt Act 8 was not
intended to break down or clarify the direct testimony;
it could serve only to establish an independent element of
the government's case. (Either the defendant would have
to give evidence against herself, or she would have to lend
importance to Overt Act 8 by contradicting the govern-
ment witnesses.) The cross-examination was therefore
improper and prejudicial. A similar analysis is made by
the Supreme Court of Washington in State v. Crowder,
119 Wash. 450, 205 Pac. 850, discussing the contention that
the direct testimony had opened the subject (p. 852) :
(See Appendix p. 47.)
To the same effect:
Wilson V. U. S., 4 F. (2d) 888 (CCA. 8) ;
State V. Hall, 20 Mo. App. 397, 404-5 (the '^dissent-
ing" opinion is the majority opinion upon this
point) ;
Lombard v. Mayberry, 24 Neb. 674, 40 N.W. 271,
279.
In the present case, defendant denied Overt Act 8 when
the prosecution "cross-examined" her upon it. This only
served to give it importance, which was increased wlu-n
the prosecution introduced rebuttal evidence and finally
168
argued that the conflict was a ground for disbelieving
defendant's entire testimony. That was especially preju-
dicial on Overt Act 6, where, as we have indicated, defend-
ant's own testimony was her chief defense. The erroneous
cross-examination on Overt Act 8 together with the argu-
ment based upon it, in themselves require that the judg-
ment be reversed.
c. Various erroneous rulings in cross-examination of defendant.
(1) The long procession of errors begins at XL VII-
5242:13-24:
nQ * * * You have never regained Japanese
nationality since January 13, 1932?
Mr. Collins. Well, I object to that, if Your Honor
please, on the ground that is calling for the opinion
and conclusion and furthermore, it is an impossibility.
She never had Japanese nationality.
Mr. DeWolfe. She had Japanese nationality.
Mr. Collins. She never had Japanese nationality.
It is an absolute impossibility, as a matter of law.
Mr. DeWolfe. We will see about that. |
The Court. Just a moment. The objection will be
overruled. She may answer if she knows."
The same thing is repeated on the next page (XLVII-5243:
10-20) :
^'Q. Did you ever regain Japanese nationality
since January 13th, 1932?
Mr. Collins. Object to that on the ground it is
calling for the opinion and conclusion of the witness
and is calling furthermore for a legal impossibility.
The witness was born in the United States; she could
not have had Japanese nationality.
The Court. The objection will be overruled. She
may answer if she knows.
169
A. Well, my understandin<r was that I had dual
citizenship when dual citizenship was recognized."
The question whether defendant regained Japanese na-
tionality first calls for a legal conclusion ; second, assumes
a fact not in evidence — that she ever had Japanese nation-
ality (which is the gist of the objection of ''impossi-
bility"). The objections were good. The fact that de-
fendant in exhibit 5 spoke about "not regain [ing] her
Japanese nationality" does not alter the fact that the
question calls for a conclusion and assumes a matter not
in evidence, l^^xhibit 5 itself was already in evidence: the
question asked did not refer to it. They were objection-
able on the grounds stated and the objections should have
been sustained. At XLVII-5245 :13-25 the question was
asked in another form :
(See Appendix p. 47.)
Note at 5244:17-22 the prosecutor asked the only proper
question — whether defendant had made the statement in
Exhibit 5. The question at 5245, supra, was improper —
whether Exhibit 5 ''refreshed her recollection" about
something which involved a conclusion in the first place.
The defendant's earlier answers necessarily involved an
attempt to give a legal conclusion : she did not testify that
she ''could not remember''. Consequently the insinuation
that defendant had "forgotten" (which is involved in the
(fuestion about "refreshing recollection") piles a misstate-
ment of her testimony on top of the improper questions.
Beryer v, U, S., 295 U.S. 78, S4, holds misstatement of
facts in question to he reversible misconduct.
(2) At X[;VI1-5310:10-5H11 :1() the |)r()secutor is per-
mitted to ask the defendant what she thoxyhl the Jap-
170
anese militarists were thinklnr/ — a plain case of calling
for a conclusion. (See Appendix p. 48.)
(3) At XLVin-5320-21 the prosecutor is allowed to
ask the defendant about a conversation between herself
and her husband.
(See Appendix p. 50.)
The passage to which the prosecutor refers in saying
*^the husband has waived it'^ is XLTV-4879:1 7-1 9— cross-
examination of Philip d 'Aquino:
**Q. And she told you since she had been over
here that she is a Portuguese national t
A. That's also correct, sir.''
We missed the objection here. But the fact that, in a
torrent of improper questions, we missed an objection
when the husband was on the stand does not entitle the
prosecutor to question the tvife about privileged commu-
nications. In the first place, the privilege is the privilege
of the communicating spouse — here the defendant. (Eraser
V. U. S., 145 F. (2d) 139, 144; 8 Wigmore on Evidence
(3d ed.) sec. 2340.) The simple fact that the husband
testified therefore is not a waiver. A waiver can come,
if at all, only from the fact that when the prosecutor
asked this question of the husband, defendant, through
her counsel, failed to object. While we have found no
case directly in point, the general rules of w^aiver do not
include failure to object under such circumstances. Wig-
more says that "the waiver may be found * * * in some
act of testimony which in fairness places the person in a
position not to object consistently to further disclosure".
(8 Wigmore on Evidence (3d ed.) sec. 2340(2)). Under
this formula, there was no waiver. EirsL, there was no
171
^^act of testimony" on the part of the defendant. Second,
no consideration of fairness prevents tlie defendant
from claiming the privilege herself. The ])rosecutor had
^* slipped one over" when lie got the answer from the
husband without objection. The fact that he got an
answer to which he was not entitled certainly does not
raise any elements of fairness in his favor. Corpus Juris
gives the following formula (70 C.J. 464, sec. 631) :
^'The privilege is waived whenever tlie j)ersov en-
titled to the protection of the statute voluntarily
makes public matters of which a disclosure without
his consent is forbidden, oi- calls oi- expressly con-
sents to a witness testifying as to such matters."
Here *'the person entitled" (defendant) did not volun-
tarily make anything }niblic. The husband was on the
stand, not she. As we said, what happened was that her
counsel missed an objection in a trial where the jirosecu-
tion employed improper (questions almost without re-
straint.
The closest cases which we have found are Kelley v.
Andrews, 71 N.W. 251 (Iowa) Failure to object to wife's
testimony at former trial does not waive privilege at
subsequent trial when wife again on the stand (p. 251) :
'^Silence under such circinHshnu cs shotiUI )iol he con-
strued as assent^',
Dalton V. People, 189 Pac. 37 (C'olo.— letter from wife
to husband — p. oS — ''The unanihorized disclosure of the
letter by the addressee does not waive the privUeye").
j It follows that the Court erred in allowing tlu^ ])rose-
cutor to (piestion the defendant about statements which
she had made to her husband.
172
(4) At XLVIII-5323-4 the prosecutor is allowed to ask
another question plainly calling for the conclusion of the
witness. This question is then repeated over and over in
different forms:
XLVIII-5323 :1 3-5324 :23—
'^Q. And you knew that all the Japanese radio
programs were Japanese propaganda, did you not,
Mrs. D 'Aquino?"
The sequel is printed in appendix p. 51. The prosecutor
is bent on introducing the conclusions which were written
into Exhibit 24 as independent evidence.
Exhibit 24 (the statement to Tillman) was already in
evidence and spoke for itself. The questions which were
asked either called for conclusions, or were subject to the
objection that the exhibit was the best evidence of its
own contents.
This passage illustrates hotr the prosecutor was never
satisfied to ask an improper question once. The repetition
of impropriety is an element which makes these errors
indubitably prejudicial.
(5) At XLIX-5392 :5-21 there are more questions call-
ing for the conclusion of the witness : j
(See Appendix p. 52.) "
(6) At XLIX-5476:13-22, the prosecutor again calls
for the conclusion of the witness :
(See Appendix p. 53.)
To ask what another person *'knew" is a typical call
for a conclusion. And the prosecutor knew it to be such
(compare objection at Vn-476:l-2, sustained by Court
*' calling for a conclusion of knowledge on the part of
173
other people") ijeA when the prosecutor ashed that kind
of a question the defendant was compelled to answer it.
(7) At XLrX-548S:r>2() the CV)urt overrules an objec-
tion to a question which is elearly ar<2:umentative:
(See Appendix p. 53.)
Inserting the words "the land of your ancestors" is
simply an argument that the defendant ought to have an
affection. Tt would be proper in an aigument to the jury,
but not in a (question to the witness.
(8) In view of the different opinions ex])i-esse(l by
various officials about defendant's citizpnshi]), it was call-
ing for a conclusion to ask her that question.
XLIX-5494 :7-13 :
(See Appendix p. 54.)
(9) The prosecutor had a habit of arguiiig with de-
fendant about her answers, and sometimes even before
she answered. He frequently asked two and three ques-
tions in a row before waiting for an answer. All objec-
tions that his questions were argumentative were over-
ruled. The first such passage occurs at XLVTI-5251 :10-
5253:11, which we set forth in the a])pendix. (Ai)])endix,
p. 54.)
A witness has a right to hare a (/ nest ion reread if she
does not understand it the first time. Mere the i)rosecu-
tor's question contained a succession of negatives, and
was for that i-eason unclear. It was wholly improper for
the prosecutor to countei- the ie(juest for a rereading by
asking "was the question hard for you to understand" —
especially aftei- defendant had tol<l him why she wanted
the question reread. (XL\n 1-5251 :14.)
174
(10) Further samples of the badgering, ciuibbling,
cross-examination which defendant Avas forced to undergo
(all over objection) are set forth in the appendix. They
occur at XLVn-5296 :8-5297 :P) ; XLVni-5320 :15-5321 :11
(this is the same passage in which the prosecutor asked
defendant about statements to her husband; the error is
aggravated by argumentative questions after defendant
stated she could not recall). At XLVIII.5328 :2-5331 :24
and again at 5386:23-5387:13 the prosecutor asks eight
times whether the defendant knew the Japanese purpose
of the Zero Hour. This series is interspersed with argu-
mentative questions, such as "can you say no!'^ The
witness answered each of the prosecutor's questions
(when he did not interrupt her), but he nevertheless asked
substantially the same question eight times. While a certain
amount of repetition is legitimate on cross-examination, we
submit that eight repetitions is pure harassment : XLVIIT-
5376 :21-5378 :1 2 ; XLVIII-5379 :4-5382 :4 ( skip 5381)—
(**are you prepared to say it was your voice" is ob-
viously argumentative); XLTX-5408 :15-5409 :14 (Exhibit
15 was already in evidence — the questions themselves
were argumentative); XLIX-5476 :2-12.
(11) Lastly the prosecution questioned defendant about
a great many matters to which she did not testify on
direct. These instances appear at XLVlII-5374 :6-23
(whether she told Cramer that she did not take out Jap-
anese citizenship because it was too much trouble) ;
XLVIII-5376:21-5378:1 (Avhether she told Cramer that by
a process of elimination she concluded that '^ Tokyo Rose''
referred to her); XLVIII-5382 :14-23 (whether she told
Cramer that she would rather broadcast than type) ;
XLVIII-5383 :2.10 (whether she told Cramer that broad-
175
casting might come in liandy for the future) ; XLIX-
5447 :23-5447A :6 (questioning about alleged broadcast of
November 11, 1944); XLIX-5450 :7-2() (questioning about
alleged broadcast of December S, 1944).
We set forth all of the above passages in the appendix.
(Appendix, pp. 56-61.)
All of these were matters which had come into the
record from various witnesses but on which the defend-
ant had given no direct testimony. She did not testify as
to any conversations with Cramer. (Defendant, XTA^T-
5159:3-5160:18.) Nor did she refer to the scripts which
the prosecution had put into the record on the cross-
examination of Reyes. All this '^cross-examination" of
defendant, therefore, could not have had for its purpose
the breaking down of any of her testimony. Its sole
object was to use the defendant herself to establish inde-
pendent items in the prosecution^ s case. Under the au-
thorities cited in discussing Overt Act 8, the cross-ex-
amination of the defendant cannot be )ised for that pur-
pose. Likewise under those authorities, attempting to
make defendant give independent eridence against herself
requires reversal of the judgment.
d. Summary.
The cross-examination of defendant denied her a fair
trial. The prosecutor argued with her, called foi- conclu-
sions, demanded that she assess the truth oi* falsity of
other witnesses, went beyond the sc()i)e of her direct to
use her cross-examination to establish independent sec-
tions of the prosecution's case. This last was especially
true of the '* cross-examination" on Overt Act 8, which
was then used to attack her entire testimony. Since her
176
own testimony was her main defense to Overt Act 6, it
was essential that testimony should be fairly presented
to the jury. Instead, the prosecutor violated one rule of
evidence after another. Errors of law during defendant's
cross-examination in themselves require a new trial.
2. MISSTATEMENTS OF THE RECORD.
Besides asking improper questions the prosecutor fre-
quently misstated the record during his cross-examination
of defendant. We now list the misstatements which have
not already been mentioned in connection with the errors
in evidence.
a. Misstatement of Kuroishi's testimony re defendant's job ap-
plication.
The first misstatement occurs at XLVIII-5356 :25-
5357:12:
^^Q. And you told Miss Tto in the winter of 1943
that Kuroishi had told you to apply for the job at
Radio Tokyo and that several other girls had applied
for the same job?
A. Oh, there are some parts of it that are not
correct.
Q. That is not correct, it is!
A. Maybe I had mentioned in talking to Mr.
Kuroishi about a job at Radio Tokyo, but I did not
apply to Radio Tokyo as an announcer.
Q. Did you tell Miss Ito in the winter of 1943, is
the questiton, that Edward Kuroishi had told you to
apply for the job and that several other girls had
applied for the same job?
The question is, did you tell Miss Ito that?
A. No, I did not. I could not have told her that."
177
Use of the words '^the job" <rives the impression that
she applied to Kuroishi for a job a.s amtomK^er. This was
also the impression which the prosecution tried to <^ive
on Kuroishi 's direct examination. But Kuroishi testified
quite explicitly on cross-examination that defendant ap-
plied to him for a job as a typist in the business depart-
ment (Kuroishi, XXI-2285:18-21) :
'^Q. But it w^as true Mr. Kamiya, rather, it was
through your intervention with Mr. Kamiya that the
defendant obtained work at Radio Tokyo in the busi-
ness office as a typist, w^asn't it!
A. Yes, sir."
b. Misstatement of defendant's testimony re autographs.
At XLIX-5398:]1-13 the prosecutor misstates defend-
ant's own testimony (XLlX-5398:6-5399:5) :
(See Appendix p. 61.)
The prosecutor did misstate the record — defendant's
earlier testimony is found at XLVIlI-5340:2-5341 :17. It
refers partly to Eisenhart through whom the prosecution
introduced ICx. 2 (1-37) the autographed Japanese paper
money (not a script),
c. Misstatement of Cousens' testimony.
At XLIX-5458 :24-5459 :5 the prosecutor misstates
Cousens' testimony:
"Q. You heard Cousens say that he was against
the allied policy of unconditional surrender, didn't
you?
Mr. Collins. There is no such testimony, if your
Honor please, from the witness Major Cousens.
Mr. DeWolfe. He broadcast on it. He admitted
himself he was against it.
178
Mr. Collins. He said he did not broadcast such a
thing.''
Cousens actually testified as follows (XXX-3432:17-
3433:2):
(See Appendix p. 62.)
d. Recross examination — misrepresentation of Exhibit 9. j[
The worst misstatement of evidence came in defendant's
recross examination. Here the prosecutor browbeat her
for six pages tr\dng to make her retract something which
the prosecution itself had put into evidence through one
of its own exhibits.
Government's Exhibit 9 is a letter written on March 12,
1947, by defendant to the American Consular Service at
Yokohama. In it she says, inter alia,
^'1 have not been able to apply sooner for re-estab-
lishment of my American citizenship as circumstances
prevented me from getting in touch with the proper
authorities."
Yet through six pages of sneering, bullying recross-ex-
amination the prosecutor tries to make her say that she
never applied for reestahlishment of her citizenship! This
disgraceful exhibition appears at L-5540 :14-5546 :1 and is
set forth in the appendix. (Appendix pp. 63-8.) It contains
an additional misstatement, besides generally trying to
make defendant deny the existence of Government's Ex-
hibit 9. At L-5540 :18-20 the prosecutor says ^'if you will
look at government's exhibit 5 — and I think it is the same
as your exhibit, this paper; if not, I will let you look at
your own exhibit ..." This is a misleading suggestion.
Defendant's Exhibit BP contained both government Ex-
179
hibits 5 and 9. By sug^^estin^ that Government Exhibit 5
contained everythinf^, the prosecutor was drawing de-
fendant's attention away from Exhibit 9, which was the
crucial exhibit on ^'reestablishment of citizenship''. And
the record further shows that the prosecutor was quite
aware of Exhibit 9. For when defense counsel reread it
to the jury (L-5558:14-16) the prosecutor said (L-5558:17-
18):
''Mr. DeWolfe. T see no reason for reading this
same letter twice to the jury."
e. Such deliberate distortion of the record has always been held
reversible misconduct.
See Berger v. U. S., 295 U.S. 79, 84, where the Supreme
Court included among grounds of reversal :
''That the United States prosecuting attorney over-
stepped the bounds of that ])ropriety and fairness
which should characterize the conduct of such an
officer in the prosecution of a criminal ofTense is
clearly shown by the record. He was guilty of mis-
stating the facts in his cross-examination of witnesses;
of putting into the mouths of such witnesses things
which they had not said * * * of assuming prejudicial
facts not in evidence; of bullying and arguing with
witnesses; and in general of conducting himself in a
thoroughly indecorous and improper manner."
Beck V. U. S., 33 F. (2d) 107, 114 (CCA. 8) :
(See Appendix p. 68.)
3. SUMMARY.
The cross-examination of the defendant abounded in
improper (|uestions and in misstatements of the record
by the prosecutor. It recpiires that the judgment be re-
versed.
180
F. IDENTIFICATION AS "TOKYO ROSE".
Exhibit 2 was introduced in advance of the govern-
ment's main case. After having identified defendant as
^^ Tokyo Rose'' the prosecution offered docmuents to prove
defendant's citizenship, and onl}^ then resumed the story
of her activities in Japan. This shows how important the
prosecution considered pinning the label ''Tokyo Rose" on
defendant. The trial judge and the United States Attorney
succeeded in conmiitting several errors upon this issue,
besides the erroneous admission of Exhibit 2. These errors
consisted both of admitting improper evidence on behalf of
the prosecution and excluding proper evidence on behalf
of the defense.
1. HEARSAY NOTATIONS ON EXHIBITS 16-21.
Exhibits 16, 17, 20 were phonograph records of Zero
Hour broadcasts taken by the Portland, Oregon, monitor-
ing station (XVI-1627, 1638, 1646). Exhibit 21 was taken
for anmsement by Sodaro, the radio engineer at Silver
Hill, Maryland. (Sodaro, XVII-1725:16-18.) These records
were introduced through one Penniwell, a radio engineer
(Penniwelly XVI-1614:18-23) who had made them {Penni-
tvell, XVI-1623:25-1624:6; 1635:22-1636:1 ; 1642:13-19;
1644:7-8), and through Sodaro (XVII-1729). Penniwell
had made several notations on these records, one of which
was '^ Tokyo Rose" {Penniwell, XVI-1628:25; 1634:13,
1640:18-20: 1647:19-23). These notations were offered as
having been done as part of the witness's '^govern-
mental official duties". (XVI-1640:18-21.) Being an en-
gineer, his duties were not connected with the contents of
the program. {Penniwell, XVI-1663 :12-14, 1663:22-1664:
3.) Sodaro made a similar notation which was not claimed
181
to be official. iSodaro, XVTT-1 732:3-7.) Defendant ob-
jected separately to the admission of the notations ''Tokyo
Hose^', XVI-] 635:3-19, U)41 :r)-1 642:10, 1645:6-17; XVII-
1728:8-12). These objections were overruled. (XVI-1642:
11-12, 1646:11; XVI[-1729:14-15.) Admitting such an ex
parte notation as part of an '^)fficiar' record is precisely
the error for which the same District eJudge was re-
versed in Prevost v. United States, 149 F. (2d) 747. That
was a prosecution for violation of the Nationality Act in
which the Court admitted a similar ex parte notation
saying that the defendant was '' German". This Court
said (p. 749, col. 1) :
''The caption was not written or signed by appel-
lant. So far as the record shows, appellant never
saw it until it was offered in evidence at his trial.
He objected to it as hearsay. It w^as hearsay. Its
admission was erroneous and prejudicial."
And similar language concerning another exhibit at 149
F. (2d) 747, 749 col. 2. This langnafie applies word for
word to the notation ''Tokyo Rosc^' on Exhibits 16', 17 and
W, At some stages of the trial the government based its
"official record" claim on 28 U.S.C. 1733b. But that sec-
tion deals with ''books or records of account or minutes of
proceedings" which clearly do not include an engineer's
notation "Tokyo Rose" on a phonograph record. The
Hodaro notation on Exhibit 21 , not claimed as official, does
not have even that much color of le(/aliti/.
Under Prevost v, U. S., the foregoing errors recjuiro the
judgment to be reversed.
182
2. EXCLTJSION OF DEFENDANT'S EVIDENCE.
The defense tried to show that the name ''Tokyo Rose''
had been in circulation long before defendant began to
broadcast. This would show that defendant was not
''Tokyo Rose"; it would also corroborate defendant's
testimony that when she autographed her programs as
"Tokyo Rose" she did so only at the suggestions of the
soldiers. (Defendant, XLVTII-5340:7-12.)
All attempts to show that "Tokyo Rose" was current
before defendant began to broadcast were blocked. De-
fendant began broadcasting in November, 1943. (Govern-
ment's opening statement 1-17:17-18; Cousens, XXVIII-
3177:1-7, 3182:13-14.) Defendant tried to show that the
phrase was known earlier at the following parts of the
transcripts :
Hagedorn, XXXIX-4327 :19-4328 :3, 4329:2-4331:3, and
defendant's Exhibit Z for identification. (XXXIX-4337.)
The testimony is set forth in the appendix. (Appendix
p. 68.) Exhibit Z for identification was Mrs. Hagedorn 's
radio log and contains a reference to "Tokyo Rose" on
July 25, 1943. Since this is a contemporary notation it
proves conclusively that the term "Toyko Rose" was cur-
rent before defendant began to broadcast, and therefore
must have referred to someone else. This evidence was
clearly relevant to rebut the Government's attempt to pin
the label on defendant. In view of the importance which
the Government attached to the point, the exclusion was
certainly prejudicial. M
The testimony of Whitten on this subject was blocked in
part. At XXXVIII-4304 :24-5 he fixes the date at April,
1942. At XXXVIII-4306:7-10 he starts to testifv that
i
183
someone asked him whether he wanted to hear ''Tokyo
Rose'', but the answer is cut short by an objection.
The prosecution likewise blocked similar testimony from
Sam Stanley.
(See Appendix p. 70.)
Proof that a woman radio broadcaster was dubbed
''Tokyo Rose" on or before October, 1943, shouts that de-
fendant was not the one. A second error occurs when the
Court denies opporUmity to ma'ke an offer of proof!
Major Williston Cox was pai-tly ])rovr'nted from ♦^ivinii:
evidence on this subject. He first testifies that he was shot
down on A%igiist 5, 1943 (Cox, XXXVII-4242:2-8). The ex-
amination as to "Tokyo Rose'' is set forth in the ap-
pendix. (Cox, XXXV1T-4243:1 5-4244:25; Api)endix p. 72.)
At XXXVII-4246 :21 -5 the witness was allowed to say that
a woman bioadcaster at this time was referred to as
"Tokyo Rose".
The Court likewise refused to let Nalini Gupta testify
that he had heard the name "Tokyo Rose" in 1942 (Nalini
Gupta, XXXIX-441 3:21-441 4:1 3) :
' (See Appendix p. 73.)
A similar ruling on the same witness occurs at XXXIX-
4428:20-4429:20.
So far as the answers come in befoi-c objection, it must
be assumed that the jury disregarded lliein. The Court
later instructed them to disregai'd nil eridence to which
objection was sustained. (I;lV-5988:8-l 1.) The fact that
defendant obtained one answc]* showing "Tokyo Rose"
to have V)een cui'rent in August 1943 leaves the otlier
rulings still prejudicial. Had all the witnesses been
184
allowed to testify they would have corrohorated one an-
other. Furthermore Mrs. Hagedorn's log entry was a
written record, better than unaided recollection. Defend-
ant was deprived both of the corroboration and of the
written record.
3. SUMMARY.
On the identification as ''Tokyo Kose" the Court not
only admitted improper evidence on behalf of the prose-
cution, but excluded relevant evidence on the part of the
defense. The rulings on this phase of the case were un-
doubtedly prejudicial.
G. REFUSAL TO PRODUCE DEFENDANT'S WITNESSES
FROM JAPAN.
Defendant moved the trial Court to have her Avitnesses
brought from Japan to the United States, so that they
could testify in person and their demeanor be observed
and weighed on the witness stand. Only alternatively did
defendant ask for opportunity to take their depositions.
(R. 117, 122-9.) Supporting affidavit at R. 130ff. That
motion was denied and, in lieu thereof, her motion to take
their depositions in Japan was granted. (R. 166, 167.)
The government on the other hand brought its Jap-
anese witnesses to the United States {Tsuneishi, Oki,
Mitsuskio, Nakanmra, Moriyama, Higuchi, Yamazaku
Ikeda, Kuroishi, Nil, Tanahe, Okamoto, Momotstika, Sugi-
yama, Igarashi — 16 in all).
The denial of the right to have the Japanese witnesses
at the trial, violates the \ ith Amendment and the statutes
which have been passed to implement it. In Gillars v.
185
U. S,, C.A. D.C. No. 10187, the C^ourt oC Appeals of the
District of Columbia made the following remark (slip
opinion, p. 16) :
'^The serious constitutional difficulty which might
arise by reason of the absence of compulsory process
to aid an accused who has been involuntarily trans-
ported to the United States for trial, far removed
from the vicinity of the acts charged is not presented
for decision. The five witnesses for whom subpoenas
were asked were all brought to this country by the
Government.''
In the present case, however, ^^the serious constitu-
tional difficulty" does arise. The Government did not
bring a single ivitness from Japan on hehaJf of the de-
fendant.
That is true though the Government had sufficient con-
trol over Japan that it was able to bring its own wit-
nesses. (Phil d 'Aquino came from Japan on behalf of the
defendant, but he came on a Portuguese passport.)
The Vlth Amendment to the United States Constitution
provides in part:
'*In all criminal prosecutions, the accused shall
enjoy the right * * * to have compulsory process for
obtaining witnesses in his favor * * *"
18 U.S.C. 3005 expressly provides that in cai)ital cases
including treason, the defendant shall be enabled to get
witnesses in the same manner as is \isually accorded the
Government. It reads:
'^He shall be allowed, in his defense to make any
proof that he can i)roduce by lawful witnesses, and
shall have the like process of the court to com])el his
186
witnesses to appear at his trial, as is usually granted
to compel witnesses to appear on behalf of the prose-
cution. ' '
Occupied Japan is in tlie same situation as the outlying
possessions of the United States. It goes without saying
that the United States has always been able to bring
prosecution witnesses from Alaska, Guam, Samoa, etc.
Here the Government brought its own witnesses from
Japan; to deny defendant a corresponding right was a
clear violation both of 18 U.S.C.A. 3005 and of the Vlth
Amendment. For that irregularity the judgment nmst be
reversed.
H. ERRORS IN INSTRUCTIONS.
We now consider the errors in Instructions other than
those already discussed in connection with specific sub-
jects. We shall take first instructions given and then
instructions refused.
1. ERRONEOUS INSTRUCTIONS GIVEN.
a. The folloAving instruction purporting to distinguish
intent from motive is an argument in favor of the prose-
cution (LIV-5975:4.22):
''Intent and motive should never be confused.
Motive is that which prompts a person to do an act.
Intent refers only to the state of mind \vith which
the act is done.
A good motive, even a laudable one, may prompt a
person to commit a crime. Personal advancement and
financial gain are two well recognized motives for
much of human conduct. Those motives may prompt
187
one person to voluntary acts of good, another to vol-
untary acts of crime.
Good motive is never a defense where the act done
is a crime. Tf a person does intentionally an act
which the law denounces as a crime, motive is im-
material.
Let me illustrate. T belong to a benevolent society
— one that feeds the poor. The organization is badly
in need of an automobile to make deliveries of food.
This circumstance induces, moves me to steal an auto-
mobile from my neighbor. ^Ty motive is a laudable
one, but my intent is an entirely different matter. T
intend to steal, commit larceny, and it is no defense
at all to a charge of larceny that my motive was
praiseworthy. ' '
Exception was taken at LTII-5932 :20-23. This instruc-
tion distinguishes betw^een motive and intent only so far
as this distinction may help the prosecution. The illustra-
tions are entirely illustrations calling for a guilty verdict.
Putting them in the instruction constituted a pro tanto
argument in favor of conviction. Such one-sided matter
in an instruction is objectionable. Compare the language
of Weave v. U. S., 1 F. (2d) f)17, ()19 (CCA. 2).
"The jury can easily be misled by the court, its
members are sensitive to the opinion of the court, and
it is not a fair jury trial when the court turns from
legitimate instructions as to the Unr lo arf/uc the facts
in favor of the prosecution. The f/overnment provides
an officer to argue the case to the jury. That is not
part of the court's duty. He is not precluded, of
course, from expressing his opinion of the facts, but
he is precluded from giving a one-si(i(»(i chaige in the
nature of an argument".
188
The intent-motive instruction errs in precisely this re-
spect.
b. The following instruction is inapplicable to the facts
of this case (LIV-5975:23-5976:10) :
^^In the case on trial, if you find that this defendant
voluntarily performed an act, or acts, which she knew
would give aid and comfort to a country or its citi-
zens or agents loiown to her to be enemies of the
United States, and that she intended by so doing to
assist the enemy or injure the United States and
betray her own country, she can not avoid the conse-
quences of her act by asserting that her motive was
not to aid the enemy, or that her motive w^as a desire
for financial gain, or to provide herself with a means
of livelihood. Motive can not negative an intent to
betray, if you find that the defendant had such an
intent. Where a person has an intent to bring about
a result which the law seeks to prevent, his motive is
immaterial. ' '
We excepted at LIII-5932 :24-5933 :4. The defendant
never made the defense that though she intended to aid
Japan, she had a good motive in doing so. The defense
throughout was that she did not intend to aid Japan — that
she was coerced into broadcasting, and that when she did
broadcast she always tried to make her broadcasts either
innocuous or favorable to the United States.
An instruction unsupported by evidence is error. It
may be prejudicial. {Thomas v. U. S., 151 F. (2d) 188,
186 (CCA. 6); Patterson v, U. S., 222 F. 599, 649-50
(CCA. 6).
In the present case the instruction is prejudicial because
it suggests an admission which the defendant never made.
1S9
It suggests that the defendant at some time took the
position that although she may have intended to betray
the United States, she had a good motive in doing so.
But that was not the case. The effect of the instruction
necessarily is to confuse the issues of motive and intent —
to give the jury the impression that Avhen the defendant
denied any intent to betray she only denied a bad
motive, and thus to deprive her of the benefit of her
defense on the issue of intent. This confusion is not
prevented by the pre\nous instruction which "distin-
guished" between motive and intent only so far as that
distinction could help the prosecution.
c. The instruction on defendant's American citizen-
ship mentioned the evidence which the government had
adduced to prove citizenship, but passed over the evidence
showing that the government had doubted or denied that
defendant was an American citizen. The instruction reads
as follows (LTV-5958:25-5959:12) :
"You are instructed that there is evidence in this
case disclosing that defendant was born in the United
States on July 4, 1916. There is, likewise, evidence
that in 1941 and 1947 defendant executed applications
for passports in which she stated under oath that she
was born in the United States and was a native-born
American citizen. It is necessary for the United
States to prove that subject was an American citizen
during the period of time the acts comj)lained of in
the indictment were committed. Proof of American
citizenship during the period of time is necessary in
order to show that defendant was a i)erson who owed
allegiance to the United States within the ])urview of
the treason statute and Article III, section :i of the
Constitution of the United States."
190
Exception was taken at LIII-5933 :17-21. Specifically
this instruction fails to comment on defendant's Exhibit A
(11-116) and on the evidence that United States Govern- {
ment officials classified defendant both as stateless and as
Japanese. (See supra, p. 17.) The instruction violates
the rule that the Court cannot comment on the evidence
of one side without also mentioning the corresponding
evidence of the other. (See cases, supra, p. 114.)
d. Defendant excepted to the following instruction
(LIV-5970:14-5971:7):
*^ While, as I have stated, giving aid and comfort
means real aid — something of value that assists the
enemy in its war effort against the United States —
it is not necessary that the acts done or the aid given
be successful. It is only required that the acts be such
that, if successful, they would encourage and advance
the interests of the enemy. Thus, it is immaterial
that the enemy mission as a whole, which defendant
assisted, if she did assist, did not achieve its pur-
pose. Accordingly, it is immaterial whether the Japa-
nese propaganda directed at United States troops in
the South Pacific, if you find such to have existed,
achieved its desired result. It is not necessary that
one single soldier, sailor, or marine be affected in any
manner whatsoever by enemy propaganda or by any-
thing said or done by the defendant, if you find
beyond a reasonable doubt that she, in fact, partici-
pated in broadcasting over the microphones of the
Broadcasting Corporation of Japan with the intent
to adhere to the enemies of the United States, render-
ing them aid and comfort. ' '
Exception was taken at LIII-5932 :4-10. The vice of the
instruction is that it does not permit the jury to consider
191
the lack of pro-Japanese results upon the issue of defend-
ant's intent. The jury are told that lack of pro-Japanese
results are immaterial ''if you find beyond a reasonable
doubt that she in fact participated in broadcasting * * *
with intent to adhere to the enemies of the United States/'
In other words, the issue of intent is presented as some-
thing wholly separate from the issue of results. The de-
fendant's position, on the other hand, is that her claim
that she did not intend to aid Japan is corroborated by
the circumstances that she did not in fact aid them. In
short, the jury have a right to consider the lack of i)ro-
Japanese results in deciding whether to believe defend-
ant's testimony that she had no intent to aid Japan.
The instruction withdraws that phase from the jury.
In so doing it errs on a vital point.
2. INSTRUCTIONS ERRONEOUSLY REFUSED.
The following instructions were requested by the defend-
ant and refused by the Court. P^xceptions to refusal of
instructions w^ere taken at LIII-5934 :1 6-5935 :(!.
a. Instruction 30A, R. 292.
''You cannot consider the defendant's admissions
upon any of the issues of (1) citizenship (2) nid and
comfort or (3) intention unless you first find that tlie
Government has introduced other credible coiToboi-a-
tive evidence on the same issue.
Pearlman v. U. S,, 10 F. (2d) 460, 461, 462
(CCA 9);
Goff V. U. S., 257 F. 294, (CCA 8)."
This instruction states the well known princi])l(' that the
corpus delicti nmst be proved by independent evidence
before the defendant's confessions mav be consichM-ed. The
192
two cases cited in support show it to be correct. No simi-
lar instruction was given so there was a total failure to
instruct upon the point. The refusal is prejudicial error.
b. Instruction 84, R. 296.
^^If the jury find that the defendant did not intend
to expatriate herself although urged to do so by
others, that fact may be considered by the jury as
some evidence that she did not intend to betray the
United States.
United States v. Haupt, 136 F. 2nd 661, 675.
United States v. Robinson, 259 F. 685."
This is an instruction to which defendant was certainly
entitled. It correctly sums up the situation: the fact that
defendant retained what she considered to be her Amer-
ican citizenship under great pressure to drop it, certainly
tends to negative any intent to betray the United States.
With this instruction refused, the facts were in the record
but the jury were not instructed upon the point.
c. Instruction 88, R. 296.
^^ Various alleged statements by the defendant as
well as records of voice tests have been admitted into
evidence for your consideration. Before you deal with
these from any other standpoint you must fii'st deter-
mine whether the defendant made each of these volun-
tarily and of her own free will not acting either under
inducement or threats. If as to any you do not find
that the Government has shown the statement to have
been made voluntarily, then you must discard any
such alleged statement from your consideration of
the case.
. Bram v. U. S., 163 U.S. 532.''
193
Defendant's proposed instruction 88 states the proposi-
tion that after a confession has been allowed to ^o to the
jury, the jury itself must again pass upon the question
whether it was voluntary. If they find it to be involuntary,
they must discard it.
That is the rule laid down in Wilson v. U. S., 162 U.S.
613, 624, 40 L. Ed. 1090, 1097, and again in Denny v, U.S.,
151 F. (2d) 828, 833 (C.C. A. 4). It is adopted by Wigmore
(3 Wigmore on Evidence (3d Ed.) sec. 861 (3) p. 349).
The Court did not submit this principle to the jury at
all. In view of the numerous confessions which the prose-
cution introduced, the omission was prejudicial error.
d. Instnictions on denial of speedy trial.
We have shown that the denial of a speedy trial requires
a reversal of the judgment with directions to discharge the
defendant. (Supra, part I.) At the very least, the jury
should have been permitted to pass on the question
whether the government's own actions in effect raised the
bar of laches against it. Submission of this issue w^as re-
quested in defendant's proposed instructions 161-169. (R.
318-20.) All were refused by the Court. The record raised
the issue. Certainly the government's delay, its inter-
ference with defendant's opportunity to get evidence and
its ultimate loss of evidence are not wholly without legal
consequences. Either they block the prosecution outright,
or they raise an issue of fact for the jury to decide. The
Court, however, treated all these actions of the govern-
ment as having no legal significance whatever. That, we
submit, was error.
194
e. Defendant's Request No. 60 — R. 295.
Defendant requested an instruction that *Hhere is no
direct evidence that any of the alleged overt acts aided
Japan or weakened the United States." That is an under-
statement: there is no evidence that any of the overt acts
aided Japan or weakened the United States at all. The
instruction was a fortiori correct and should have been
given.
f. Summary. '^
The above refused instructions were on points vital to
the defense. Especially is that true of the instruction (84)
that defendant's refusal to take Japanese citizenship is
some evidence that she had no intent to betray the United
States, and of the instruction (30 A) stating the proposi-
tion that the jury cannot consider the defendant's confes-
sions unless they find the corpus delicti to have been
proven by independent evidence.
For failure to give the foregoing instructions the judg-
ment must be reversed.
I. MISCONDUCT or THE PROSECUTOR.
We now consider the instances of the prosecutor's mis-
conduct not already discussed. A number occur in the
taking of evidence; the great majority are serious impro-
prieties in the prosecutor's argmnent to the jury. We first
take the misconduct in the argument.
195
1. MISCONDUCT IN ARGUMENT TO JUBY.
a. Misuse of Exhibits 52 and 54.
Exhibits 52 (XXXIII-3741) and 54 (XXXIII-3825) were
unsworn, extrajudicial statements which Reyes gave to
the FBI.
Exhibit 52 was expressly limited to the impeachment of
Reyes' credibility. (XXXIII-3779:10-22.) The prosecutor
expressly said that the document w^as offered on credibil-
ity and impeachment, (XXXIII-3779:16, 21-2.) Defendant
made a similar request to limit Exhibit 54, on which the
Court did not expressly rule. (XXXIII-3825 :7-15.)
Impeachment of the witness w^ho signed it was the
only purpose for which such a statement could be received.
See Bridges v. Wixon, 326 U.S. 135, 153 :
*^We may assume that they would be admissible for
purposes of impeachment. But they certainly would
not be admissible in any criminal case as substantive
evidence. ' '
Yet with full knowledge of this principle (having stated
it when Exhibit 52 was admitted) both United States
attorneys argued extensively that Exhibit 52 proved sub-
stantive facts in the case!
(1) In the prosecution's opening argument we find the
following (I Arg. 36:5-11):
''Reyes' statements that he made to members of the
FBI are quite illuminating. He made a statement on
October 2nd, 1948. It is Government's Exhibit No. 52,
I think 1 will read the entire staUMiicnt to you ladies
and gentlemen. I think it is a very imi)ortant piece
of evidence in this case. Proves conclusivdg that
there was no sabotaging of the program,''
196
Of course, Exhibit 52 is not ^^illuminating" on the facts
of the case. It does not prove conclusively or at all ^*that
there was no sabotaging of the program." The United
States attorney knew\ that very well.
After this introduction, he read the exhibit in fidl
(I Arg. 36-41) and also Exhibit 54. (I Arg. 41-45.) Read-
ing these exhibits after saying that 52 is ^illuminating"
and *^ proves conclusively" amounts to telling the jury to
consider the exhibits as proof of the truth of their con-
tents.
In short the United States attorney used the exhibits
as substantive evidence expressly on the question whether
defendant and the other prisoners sabotaged the program,
and impliedly for their entire text.
We made the assignment of misconduct and request for
an instruction at LIV-5939 :6-12. The judge gave no in-
struction on the point. (LIV-5939 :17-23, dealing wholly
with another assignment.) ■
(2) As if this were not enough the prosecution again
used Exhibit 52 as substantive evidence in its closing
argument (II Arg. 328:1-21) :
(See Appendix p. 74.)
Here the prosecutor uses Exhibit 52 to prove the truth of
its contents with respect to another defense witness,
Cousens.
And once having done so he returns again and again to
the point, driving it in and gloating over it (II Arg. 329:
23-330:5):
''They got the right man in Charles Cousens, an anti-
war man who believed, according to the defense, in a
beneficent Japan, in the domination of Asia by Japan,
197
who was plugging against an unconditional surrender
being imposed on Japan and who was plugging, ac-
cording to the defense testimony, valiantly for the
Greater East Asia co-prosperity sphere. That is the
defense evidence, and not the government's.'^
(II Arg. 336:4-7):
''And she is one of our little soldiers, fighting at the
other end of the line, with Cousens a proponent of the
Greater East Asia co-prosperity sphere/^
Defendant assigned these second passages as misconduct
and again asked for an instruction on the effect of the
evidence. (LIV-5941 :7-ll.) Again the Court did nothing.
(LIV-5941:21-4.)
These arguments are flagrant misconduct. To use im-
peachment as substantive evidence is on the same footing
as going outside the record. (Cf. Taliaferro v. U. S., 47 F.
(2d) 699 (CCA. 9).)
b. Reference to future prosecution of others.
At I Arg. 47:13-16 we have the following:
''Can we say as much for the other prisoners of war!
I don't think so. However, they are not on trial in
this case. Some of them we have no jurisdiction
over; others may be put upon trial."
A request for an instruction to disregard was made
(LTV-5930:18-16) and given. (LTV-5939:20-22.)
But an argument which brings in other alleged crinics
not shown by the record has been held to i-(M|uir(' a new
trial notwithstanding an admonition to disregard. See
Turk r. U. S, (CCA. 8), 20 F. (2d) 129, 131.
198
c. The prosecutor deliberately distorted the testimony of Sugi-
yama, so as to reverse its actual sense :
(II Arg. 321:5-9):
^^Sugiyama, an employee of Radio Tokyo, although
not a participant in the Zero Hour, said he heard the
defendant broadcast to the troops who were fighting
out in the South Pacific: ^You must be lonely out
there. It is very uncomfortable out there/ "
This telescopes two quotations omitting an essential
sentence from one. The first quotation in full reads as
follows: {Sugiyama—XXlY-2^06:16-lS) :
*^A. ^ Hello, you Orphans of the Pacific. This is
Orphan Ann. You must be lonely out there. Let me
cheer you up with some music' ''
The italicized sentence changes the tenor of the quota-
tion. To say merely *^You must be lonely out there'' is
calculated to have a depressing effect. That was the sense
of the prosecutor's quotation. But to add ^'Let me cheer
you up with some music" shows that the broadcast is
designed not to depress but to lift the spirits of the
listeners.
To read the quotation without this last sentence (as the
prosecutor did) is deliberately to distort the sense of the
evidence. Such misconduct comes within the principle of
Taliaferro v, U. S., 47 F. (2d) 699 and Berger v. U. S.,
295 U.S. 78, 84.
d. At II Arg. 344:23; 35:2, the prosecutor made the old fa-
miliar argument that the defendant should be convicted to
serve as an example to others:
**This matter should serve as a warning to others
that they cannot, in our great hour of peril, desert
199
their country and with impunity adhere to the enemy
— and not, if the United States survives, be brought
to book before a federal court of justice.'*
A request to disregard was made at LIV-5941 :12-14 and
not given. ( LIV-5941 :21-24.) Turk v. U. S., 20 F. (2d)
129, 131 holds such an argmnent reversible error even
after an instruction to disregard.
e. Summary.
Each of the misstatements or misuse of evidence occur-
ring in the prosecutor's argument has alone been held
sufficient to reverse a conviction. Certainly four such
transgressions must have that effect.
2. MISCONDUCT IN TAKING OF EVIDENCE.
Most of the instances of misconduct in the taking of
evidence have already been covered under specific subject
heads. We add a few other items :
a. In the direct testimony of Igarashi, there occurs the
following (/^ara-s/^i— XXIV-2621:23-2624:10) :
(See Appendix p. 75.)
In this situation the Court's instruction to disregard
was clearly futile. The prosecutor succeded in getting
what he wanted by his coaching of the witness. Having
the objectionable question re-read after the recess drove
the same point home again both with the witness himself
and with the jury. Such suggestions to the government
witnesses deny the defendant a fair trial: certainly when
combined with the other errors in this record.
b. In the cross-examination of Chiyeko Ito the follow-
ing occurred (XL-4529:7-4530:5) :
(See Appendix p. 77.)
200
An examination of Miss Ito's direct testimony will dis-
close that she did not testify on direct that she talked
with defendant about her announcing. Shortly before the
prosecutor had said so himself. (See XL-4528:7-15.) Here
the prosecutor flatly misstates the record.
c. Once in the cross-examination of the defendant and
once in the cross-examination of Reyes, the prosecutor
used a tactic which we submit was inexcusable. First he
told the witness to answer ^*yes'' or ^^no^' a^^^ then ex-
plain; then after the witness had given a categorical
answer and requested leave to explain, the prosecutor
denied it. We quote these passages in the appendix.
Defendant, XLVII-5286 :10-11 , XLVII-5287 :24-5288 :13 ;
Reyes, XXXIII-3788 :7-23, XXXV-3966 :5-6, 13-23. (Ap-
pendix, p. 78.)
It is quite evident from the above that the prosecutor
was not seeking the truth but was bent on browbeating
and oppressing the witnesses, including defendant. At the
very least, it provides a background for other misconduct
which the Court made no attempt to remedy. The i>rose-
cutor's whole handling of the case calls for a reversal.
J. ERRONEOUS RULINGS ON EVIDENCE.
1. EXCLUSION OF DEFENSIVE MATTER.
Many of the Court's rulings on evidence excluded de-
fensive matter which the defendant tried to introduce.
a. Evidence that defendant's broadcasts were beneficial to
United States morale, or at worst, harmless.
Defendant offered various evidence to show that her
broadcasts were beneficial to the morale of American
201
troops. Such evidence is relevant notwithstanding the
rule that proffered aid and comfort to the enemy need
not have been successful. {Chandler v. U. 8., 171 F. (2d)
921, 941.) This latter rule is merely that it makes no
difference whether broadcasts calculated to aid the enemy
failed in their purpose. Here on the contrary, we wanted
to show the effect on the listeners as part proof of the
contention that the broadcasts actually were calculated to
aid the United States and to injure Japan.
(1) Oflfered testimony of Kamini Gupta.
Kamini Gupta testified at XL-4554 ff. He was a chief
warrant officer (XL-4555:12-15) in the Alaskan theater.
(XL-4556:2-18.) He was called on to give secondary evi-
dence of an Army bulletin circulated to staff officers of
the United States Army and stating that the ^'Orphan
Ann" program (defendant) was a morale builder among
the American troops. (XL-4560:l-6; offer of proof, XL-
4561:14-24.) A foundation had been laid for the admis-
sion of secondary evidence: the witness had no access to
the bulletin itself. (XL-4559:15-18.) The government ob-
jected solely on the ground that the bulletin was incompe-
tent, irrelevant, immaterial and hearsay. (XL-4560:7-8.)
The bulletin was clearly material on the issue whether
defendant's broadcasts gave aid and comfort to the enemy
or to the United States.
It was not hearsay because it constituted an admission
by the party opponent. The United States is the party
plaintiff in the case; the Army is a de))artment of the
plaintiff'. The bulletin is identified as an official document.
Consecjuently it is a statement of the United States it-
self— and competent as an admission.
202
Admissions made by authorized agents bind the United
States just as much as any other litigant. Compare The
Silver Palm, 94 F. (2d) 754, which was an admiralty case
arising from the collision of The Chicago, a United States
naval vessel with a British merchant ship. The United
States was a party. Falsification of The Chicago's log
by those who had charge of it was held material as an
admission against the United States. The Silver Palm,
94 F. (2d) 754, 762 — citing cases in which private liti-
gants were parties and applying them equally against the
United States. The United States is, of course, just as
much a party in a criminal prosecution as it is in a case
involving collision of a United States cruiser.
Compare, also, the statement of the Court of Claims in
W. L. Fain Grain Co. v. U. S., 68 Ct. CI. 441, 445 :
**The Government is not exempt from the rules of
evidence that apply to other litigants.''
In Hicks v. Hiatt, 64 F. S. 238, 246 n, inferences arising
from suppression of evidence were used against the gov-
ernment in a criminal case (courts martial).
A direct admission by a governmental department is
certainly, admissible. Since the contents of the bulletin
in question bear directly on the question of aid and com-
fort, exclusion was prejudicial.
(2) Exhibit BV for Identification.
Exhibit BV for identification (L-5599) was a citation
to defendant issued by the United States Navy. Objec-
tions to its authenticity was expressly waived (L-5596:24-
5597:1) but the document was excluded as incompetent,
irrelevant and hearsay. (L-5597:l-3, 5599-5699:2.)
203
This exhibit raises exactly the same issues as the bulle-
tin to which Kamini Gupta testified. It is relevant on
the issue of aid and comfort to the enemy. Having been
issued by the Navy, a department of the United States
government, it is an admission of the party opponent.
On the motion for bail pending appeal the government
asserted that this citation had been issued in a * ^jocular''
vein. Of course, that is something which must be judged
from the contents of the exhibit after it has been received
in evidence: it goes to weight rather than admissibility.
Moreover, even if the document was jocular, which we
deny, it is relevant on the issue of aid and comfort: it
shows that one of the departments most closely concerned
could make light of something for which the defendant
has now been sentenced to ten years in prison. From any
standpoint the document was material; having been ut-
tered by the government, it was not hearsay. Since it
goes to a vital issue in the case, its exclusion was preju-
dicial error.
(3) Defendant's program substantially like United States broadcasts.
(a) Defendant tried to prove through its witness Paul
that the defendant's broadcasts were of substantially the
same character as those of the American Armed Forces
radio program. This testimony was ruled out on the sole
ground of '' immateriality '\ See Paul XL-44r)5 :22-4456 :8 :
'^Q. During that same period of time that you
listened to the Zero Hour program, did you also listen
to the Armed Forces radio program?
A. Yes.
Q. Was the music that was on the Armed Forces
I'adio program substantially the same in character as
that which you heard on the Zero Hour program!
204
<
Mr. De Wolfe. I object to it as immaterial.
The Court. What is the purpose of the testimony?
Mr. Collins. To show the character of the music
that was played, if Your Honor please.
The Court. The objection will be sustained."
Whether or not defendant's broadcasts were of the same
nature as the broadcasts which the United States itself
furnished its own forces, was clearly relevant to the issue
of aid and comfort. An affirmative answer would support
the defendant's contention that she was trying to aid the
United States and not Japan. (Similar testimony had
previously been admitted from defense witness Speed
without objection. (Speed, XXXIX-4406:21-4407:1.) Here
again the excluded evidence goes to a vital issue, and the
ruling was prejudicial error.
(b) Defendant also tried to prove that our troops
were never ordered not to listen to defendant's program.
The Court disallowed the testimony from witness Stanley
(XXXIX-4348:9-20):
**Q. Now, Mr. Stanley, did the army or the navy
intelligence or the Seabee division or departments
ever alert you or the officers or the men to listen or
not to listen to that program?
Mr. DeWolfe. Objected to as incompetent, irrele-
vant and immaterial.
The Court. Objection sustained.
Mr. Collins. Q. Were you ever informed by your
commanding officers or any officers of the army or
navy intelligence or the Seabees that Orphan Ann
was Tokyo Rose?
Mr. DeWolfe. Objected to as incompetent, irrele-
vant and immaterial, and hearsay.
The Court. Objection sustained,"
205
and Paul (XL-4454:23-4455:3) :
''Q. During that period of time were you or the
crew alerted by Naval Intelligence to listen to the
Orphan Ann program on the Zero Hour?
Mr. DeWolfe. Objected to as incompetent, irrele-
vant and immaterial and hearsay.
The Court. Objection sustained/'
though admitting the same from witness Speed. (XXXIX-
4405:25-4406:15.)
Here as in the previous instance the Court's ruling de-
prived defendant of corroboration on a major point. It
was unquestionably prejudicial.
b. Fraud in preparation of Government's case.
Defendant offered evidence of fraud in the preparation
of the government's case — but the Court did not allow
the jury to hear it. It is well settled that fraud in the
preparation of the case is a relevant circumstance and
may always be shown to weaken generally the opponent's
position. Wigmore says:
(See Appendix p. 80.)
Hicks V. Hiatt, 64 F. S. 233, 246, n. 19, notes that while
the principle has usually been invoked against defend-
ants, it operates equally against the government.
(1) Fraudulent subpoenas to Government witnesses.
The trial was originally set for May 16, 1949, and then
postponed at defendant's request to July 5, 1949. (R.
194-5.)
In short, the case was never on for any time in June.
The Court may also take judicial notice that the trial of
206
cases in the United States District Court in San Fran-
cisco commences at 10:00 A.M., not at 9:00 A.M.
The government, however, caused to be issued 25 sub-
poenas ordering as many witnesses to attend the trial of
U, 8. V. d^ Aquino in the courtroom. No. 338 Post Office
Bldg., at 9:00 A.M. on June 27, 28, 29, 30 (different sub-
poenas were for different days, but all for one of these
four days). The hulk of these subpoenas was excluded.
(Defendant's Exhibit BT for Identification; L-5590.) Two
had previously been admitted because issued to witnesses
subpoenaed by both sides. (Reyes, Def. Exh. V, XXXIV-
3942; Ito, Def. Exh. CC, XL-4544.)
Here we have black and white evidence of fraud in
preparation of the case. The government practiced whole-
sale deception on its own witnesses. That is certainly
something which reflects on the trustworthiness of the
entire case. It is admissible under the principle stated
by Wigmore in the above quotation.
In fact the government's own argument showed how
important this evidence was. For in arguing to the jury
the prosecutor grandiloquently assumed the halo. He even
went so far as to claim that our charges of unfair and
dishonest presentation were trumped up to support an
indefensible case. These passages are quoted in the ap-
pendix. (II Arg. 260:2-5; 260:12-21; 292:22-293:9; Appen-
dix, p. 80.)
In other words, the prosecution did here what it had
done in other parts of the case: first it kept the facts out
of evidence as ^ immaterial" and then it argued that they
did not exist. The fraudulent subpoenaes were documen-
tary proof that the government's preparation of the case
207
was not honest and above-board. As such they throw a
shadow on the entire prosecution. That evidence should
have been permitted to go to the jury for them to weigh
with the other evidence in the case.
(2) Bribery of Government witnesses by Bnindidge — alternative ground
of admissibility.
(a) It has already been shown that Harry Brundidge
went to Japan ^^dth John B. Ilogan of the Department
of Justice in March, 1948, to get defendant's signature
to Exhibit 15. The United States government paid Brun-
didge's plane fare. {Hogan, VIII-630:18-631 :5.) Brun-
didge was present when Hogan interrogated the defend-
ant. (Hogan, L-5577:22-3.)
Defendant offered Brundidge 's passport as further evi-
dence of his official capacity in making the trip. (Defend-
ant's Exhibit BR for Identification, L-5580.) Attached to
the passport itself is an army permit which recites:
"Object — Official Business for the Department of Jus-
tice Endorsed by the Department of Justice"
The Court rejected this exhibit. We submit it is issued
by a department of the United States government, and
is competent as an admission of the party o])])onent. It
is relevant to show^ Brundidge 's connection with the
United States government in the matters which we now
proceed to relate.
(b) Brundidge bribed Hiromu Yagi, who testified be-
fore the grand jury for the government, and he attempted
to bribe Toshi Katsu Kodaira, who gave a deposition for
the defense. (See deposition of Kodaira, R. 671 ff., most
of which was ruled out of ovidcnco, and Tiflnunf, XW-
208
1597:17-1599:13.) Since the government called neither
Yagi nor Brundidge at the trial, the Court excluded Ko-
daira's evidence.
Our position is first, that the evidence of expenses paid
by the Department of Justice, plus Exhibit BR for Identi-
fication, which should have been admitted, establish prima
facie that Brundidge was acting on behalf of the govern-
ment when he was in Japan in 1948. Second, evidence of
his corrupt activities on behalf of the government may
be given even though he was not called as a witness. This
is again under the rule of 2 Wigwore on Evidence, Sec.
278, and Hicks v. Hiatt, 64 F. S. 238 — fraud in the prepa-
ration of the case may always he shown to weaken gen-
erally the case of the opponent.
(c) There is also an alternative ground on which
Brundidge 's corrupt activities are admissible. Such ac-
tivities on the part of a witness will always be admitted
to impeach the witness. See 3 Wigmore on Evidence (3d
ed.). Sec. 690. Doubtless that is the reason why the prose-
cution did not call Brundidge after having put him on
their witness list. (Exh. 1, 1-33.) But while Brundidge
did not take the witness stand, his hearsay statements
became evidence in the case. Witness Clark Lee testified
that he based his recollection of defendant's supposed ad-
missions about a propagandistic broadcast upon the notes
of Harry Brundidge. (See, VIII-652:ll-653:6.) Now the
rule is that where hearsay is admitted, it is subject to
impeachment just the same as sworn testimony in Court.
3 Wigmore on Evidence (3d ed.). Sec. 884, p. 377, says,
referring to hearsay admitted in evidence:
*'Now, in the same way, the statements being testi-
monial in their nature, it is proper to subject them.
209
when admitted to impeachment in the appropriate
ways, as it was to require the usual testimonial quali-
fications in advance; and that is what wc find the law
doing.'' (Italics in original.)
Wigmore then enumerates different types of admissible
hearsay and shows that they all may be impeached in the
usual way. The United States Supreme Court applied
this principle to a dying declaration in Carver v. U. S.,
164 U.S. 694. There is every reason why all the usual
modes of impeachment should apply to hearsay admitted
in evidence. By definition hearsay is tested neither by
cross-examination nor by the oath. Since two of the usual
testimonial safeguards are lacking, it is especially im-
portant that all others should be available. Impeachment
should therefore be allowed according to the usual rules.
Since proof of corrui)t activities in the case is an estab-
lished mode of impeaching a witness who takes the stand
it must be equally available against one whose hearsay
statements come into evidence. So, since Clark Lee based
his testimony upon Brundidge's notes, proof of Brun-
didge's corrupt activities was admissible to impeach those
notes. The District Court erred in excluding such proof
and the error cannot but be prejudicial.
c. Additional proof of intent in bringing food, etc., to allied war
prisoners.
We have already given the reasons why defendant's aid
to Allied prisoners requires a judgment in her favor on
the i)resent record. But even were the Court to disagree
with us on this issue, the District Court committed re-
versible error with respect to it. The prosecution was
permitted to introduce evidence designed to take the edge
210
off the proof that the defendant aided Allied war prison-
ers. Specifically it introduced Exhibit 47 (XXX-3421), a
cartoon dated May 21, 1945, in which the Bmika prisoners
thank one, Domoto (a guard), for the food which he had
brought them from the black market.
But defendant was not allotved to introduce evidence to
show that aid to Allied prisoners was actually contrary
to the policy of the Imperial Japanese Government. Such
proof would show that defendant was really acting against
Japan and was not joining in any general practice. De-
fendant first tried to show on the cross-examination of
Kenneth Ishii that when defendant tried to bring food to
the Bunka prisoners, she was prevented by the guards:
Ishii, XVIII-1856:ll-24:
**Q. Were you at any time in the company of the
defendant denied admission to Bunka when you were
making such visits for that purpose!
A. Yes.
Q. Do you recall by whom you were denied that
admission ?
Mr. Hogan. Objection, Your Honor: this is going
far beyond the realm of the direct examination of this
witness.
The Court. Objection sustained.
Mr. Collins. Q. Was there an armed guard that
denied you admission?
Mr. Hogan. Objection, Your Honor: improper
cross-examination.
The Court. Objection sustained. Let the jury dis-
regard that as having nothing to do with this case."
Note that while the objection to the last two questions
is on the ground of improper cross-examination (unten-
able) the Court finally sustains it as '* having nothing to
211
do with the case''. This is clearly error; just as the prose-
cution was allowed to try to soften the effect of defend-
ant's bringing food to the Allied prisoners, she should
have been allowed to emphasize it.
Similarly, proof of the systematic starvation of Allied
prisoners at Bunka was not permitted even though it
would tend to show that her aid to Allied prisoners of
war was in opposition to the Japanese government: See
XXXVII-i260 :9-] 7, where the point was expressly made
and ruled immaterial.
On all these matters, the defendant was ])revented from
proving her side of an issue while the prosecution was
allowed to prove its side. Such rulings constitute a partial
denial of her right to hearing and are necessarily preju-
dicial.
d. Proof of rumors for impeachment.
The prosecution called a string of veterans who testi-
fied to their "recollection" as to what they had "heard"
the defendant say over the radio (see statements of facts).
The defendant tried to show^ that there were a great
many rumors afloat among the armed forces in the Pacific
as to things allegedly coming over the radio, but which
were not actually being broadcast. The object of this
testimony was to impeach this group of prosecution wit-
nesses by showing that they could not distinguish in their
o^v^l minds betw^een what they had heard over the radio
and what they had heard by way of rumor. Almost all
such proof was rejected by the trial judge. The following
are the transcript references:
212
Whitten, XXXVIII-4308 :17-21—
'*A. I heard several stories in Alaska about Tokyo
Rose and I
Mr. DeWolfe. I object to it as hearsay what con-
versation this witness heard.
The Court. Objection sustained. Let it go out and
let the jury disregard it.'*
and 4317 :6-9—
*^Q. Were you informed by anyone while you were
at Nanomea that Tokyo Rose was broadcasting!
Mr. DeWolfe. Objected to as hearsay.
The Court. Objection sustained."
Stanley, XXXIX-4340 :4-6— •
and 4341:15-4342:^
Nalini Gupta, XXXIX.4413 :21-4414 :13—
These passages have already been quoted at appendix
pp. 70-74.
This e\adence was admissible to impeach the govern-
ment witnesses who testified from * ' recollection " as to the
*^ defendant's broadcasts". (Fragments of such evidence
went in : Whitten, XXXVIIl-4330 :15-21 ; Stanley, XXXIX-
4355:14-18; Speed, XXXIX-4403 :13-25. The Court's rul-
ings prevented defendant from fully developing this de-
fense.)
Authorities on this point are sparse. 2 Moore on Facts,
Sec. 823, p. 926 gives the best exposition of the relevancy
of such evidence :
^^823. Recollection Mixed with Communications
from Others. — Lord Brougham said 'we know that
great variations take place in the recollection of indi-
viduals not accustomed to business, more especially
213
after much gossiping talk has been had in the neigh-
borhood upon the subject on wliich they afterwards
gave their evidence;' and that 'suggestions of idle or
of designing persons get to be mixed up with the
recollections, which become fainter and fainter, till at
last their own fancy helps to mislead them and they
lend themselves to support a false case, possibly with-
out incurring the guilt of forswearing themselves.
^' ^Some, from defective recollection, will blend
what they themselves saw or heard with what they
have received from the narration of others,' said Mr.
Justice Field.
** Chancellor Zabriskie spoke of 'a warm imagina-
tion which makes narrations, often repeated by a good
friend, seem as if they were of facts seen by the
witness.' "
The above quotation by Justice Field is from U. S. v.
Flint, Fed. Cas. No. 15, 121, 25 Fed. Cas. 1107, 1111; aff'd
U. S. V. Throckmorton, 98 U.S. 61.
Since the fact of confusing rumors is itself relevant to
the witness's credibility, it is ])roper to show such rumors
as impeaching evidence.
A case ai)plying this principle under slightly different
circumstances is San Antonio Transit Co, r. McCurry, 212
S.W. (2d) 645, 649 (Tex. Civ. A])p). There the plaintiff
in a personal injury case was allowed to show, not the
rumor but the occurrence of another incident of reckless
driving to support the inference that defendant's wit-
nesses had this other incident confused with the one in-
volved in the litigation.
Under the principle stated by Moore, supra, the cur-
rency of rumors had at least as much t(^ndency to cloud
214
the recollection of the Avitness. It was therefore equally
competent to prove such rumors.
The error in rejecting this line of impeachment was
obviously prejudicial. The impeachment was directed at
ten prosecution witnesses (G. Velasquez, Sherdeman,
Sutter, Hoot, Cavanar, Thompson, Gilmore, Cowan, Hall,
Henschel, see App. pp. 2 to 6) who gave up some of the
most damaging testimony against appellant. Refusing to
allow the defendant to impeach their credibility in this
important way requires a new^ trial.
e. Proof of other broadcasts.
The prosecution offered evidence of broadcasts ranging
on Tokyo time from 3:00 P.M. (Hoot, XX-2136 :24-2137 :
2, 2142:15-17, Gilbert Islands 6:00-7:00 P.M.) to midnight
{Henschel, XXVI-2960, 2988; Leyte 9:00-11:00 P.M.). See
summary of these witnesses, App. pp. 2 to 6. j
The defense, however, was usually limited to rebuttal'
testimony covering only the hour 6-7 P.M., Tokyo time.
Among other things the Court excluded evidence of the
contents of the broadcasts of Myrtle Liston, w^ho broad-
cast from Manila. The purpose of this evidence was to
show that the government witnesses were listening to this
program when they thought they were listening to the
defendant. It is clearly relevant under the principle of
San Antonio Transit Co. v. McCurry, 212 S.W. (2d) 645,
supra. The excluded broadcasts of Myrtle Liston appear
in the deposition of Ken Murayama, her script writer and
master of ceremonies (K. Murayama, R. 847-8) :
(See Appendix p. 81.)
Other witnesses were likewise stopped from testifying
to Japanese broadcasts occurring at other hours than 6-7
215
P.M. Tokyo time. See Schenk, R. 514-16; Matsui, R. 618-
621, and particularly 645-6; Welker, XXXVITI-4387 (def.
Exh. Z for Identification); Gallagher, XXXIX-4376-7,
4380-85; Cox, XXXVII-4262:17-20; Whitten, XXXVIII-
4398:8-13. Mrs. Kanzaki was prohibited from testifying
to the contents of Berlin broadcasts (XLI-4583:12-19)
although she was later allowed to give one item from the
Tokyo German hour (Kanzaki, XLI-4586:7-17).
On the motion for bail ])ending appeal the government
argued that in some instances defendant was permitted to
introduce evidence as to broadcasts at other hours than
6-7 P.M. Tokyo time. But that is no answer. The prose-
cution was unreservedly allowed to give evidence of
alleged broadcasts over a nine-hour stretch; the trial
Court largely limited the defendant's rebuttal to only one
hour. Defendant was never allowed to counter the full
range of the prosecution's proof. That is obviously a
denial of a fair trial.
f. Defendant's citizenship.
As already pointed out, the United States authorities
classified the defendant as an American citizen only when
they wanted to prosecute her for treason. Some evidence
to this effect went in but more was kept out. It was
relevant first on the issue of defendant's citizenship: if
the government itself had doubts about defendant's status
it could not ask the jury to find on the issue beyond a
reasonable doubt. Second, it showed the harassing and
unfounded character of the prosecution: the government
labeled defendant with whatever citizenship might give
a color of an excuse to oppress her. This parallels the
''unnecessary hardships and cruelties" inflicted on the
216
1
Nisei in the United States, Acheson v. Murakami, 176 F.
(2d) 953, 954. Martin Pray, defendant's guard at Sugamo
prison in 1945-G was called to testify that the American
authorities did not then classify her as an American
citizen; but on the contrary gave her the jail routine
accorded to Japanese prisoners. See Pray, XLIII-4706:
19-4708:10; offer of proof at XLIII-4719 :6-16.
A similar attempt was made when Phil d 'Aquino, de-
fendant's husband, took the stand. His testimony was
likewise rejected. See Phil d 'Aquino, XLIII-4818 :19-
■^819:16— offer of proof, XLIV-4849 :5-15 (defendant
treated as Portuguese after her release from prison in
October, 1946).
The same thing happened in the examination of the
defendant herself. See Defendant, XLVII-5208 :20-5209 :
14, also XLVII-5225:3-5226:13.
Since these rulings amounted to an exclusion of the
government's own doubts upon a subject which it had to
prove beyond all reasonable doubt, the error was preju-
dicial.
2. DENIAL or OFFERS OF PROOF.
We have already quoted the transcript where the trial
judge and prosecutor united in their idea that offers of
proof were unauthorized and improper. See p. 90,
supra.) The trial judge repeated his position at various
stages of the trial. For instance, at XLVII-5211 :14-17 he
volunteered :
^'The Court. Now just a moment. The court has
indicated to you clearly that it cannot accept an offer
of proof. You are limited to the witness on the stand
and you may examine her on any matter that you see
fit."*
217
Wo have also shown that on the second occasion when
the matter came ii]) defense counsel asked to make their
offer of proof in the absence of the jury and were told
to make it in the presence of the jury. (See p. 99, supra.)
Frequently, we managed to get some semblance of ofTei*
of proof into the record : but at other times the defense
was wholly frustrated. This section of the brief rJeals
only with the instances where defense counsel were pre-
vented from making any offer of proof at all. Tt occurred
at the following places in the transcript:
XXXV-3957 :22-3958 :6 {all disputed questions in
Reyes' testimony) ;
XXXVTI-4291 :3-4292:9, XXXVTII-4293-4303, see for
example, XXXVIII-4296:10-14, 4302:17-4303:3 (al-
most the entire testimony of Kalbfleisch) ;
XXXIX-4341:22-4342:4 (Stanley— rumors confusing
recollection of witnesses) ;
XLVIT-5201 :5-5203 :2 (Defendant — while imprisoned
in 1945-6 demanded of the authorities copies of
charges, counsel, speedy trial — fiagments of this ma-
terial later came in).
Since an offer of proof is necessary on direct examina-
tion (see cases p. 90, su])ra), it is error to refuse leave to
make one. See the following authorities: oS C'v/r. \\VM)\
64 C. J. 123, sec. 139; Maxwell r. Jfahcl, 92 111. App. r^lO,
512; Spitzer r. Meyer, 198 111. App. :);■)(); Fid. r( Cas. Co.
V. Weise, 80 111. App. 499 (rev'd other grounds, 182 111.
496, 55 N.E. 540); Ehrhardt v. Stevenson, 128 Mo. A])p.
476, 106 S.W. 1118, 1120; also State r. Irwin, 17 S. Dak.
380, 97 N.W. 7, 10, and Thomas v, I), C, 90 F. (2d) 424,
428 (App. D.C.).
218
Because the erroneous rulings of the trial Court were
highly prejudicial to the defendant we wish to point out
that the judgment must be reversed under the following
rules :
Error is presumed injurious unless it appears beyond
doubt that it did not and could not cause prejudice.
Parlton v. U, 8. (C.A.-D.C), 75 Fed. (2d) 772, 776.
Error is presumed to be prejudicial and to require a
reversal where record shows error but does not disclose
whether error is prejudicial or not.
Ah Fook Chang (C.C.A.-9), 91 Fed. (2d) 805, 810;
Little V. U, S. (C.C.A.-IO), 73 Fed. (2d) 861, 866-7.
Where errors committed by trial Court are fundamental
the reviewing Court cannot affirm even if it is without
doubt of defendant's guilt.
Meeks v. U. S, (C.C.A.-9), 163 Fed. (2d) 598, 602. <
Denial of leave to make an offer of proof is an error
which prevents the defendant from showing the prejudicial
effect of an earlier riding. Such an error per se requires
reversal of the judgment. The reasons for this were given
by the Supreme Court of California, in People v. Steven-
son, 103 Cal. App. 82, 93, 284 P. 487 :
(See Appendix p. 82.)
Followed in People ?;. Sarrazzawski, 27 Cal. (2d) 7, 19,
161 P. (2d) 934.
3. ERRORS ON EXAMINATION OF PROSECUTION WITNESSES.
The following erroneous rulings on evidence occurred
during the examination of witnesses for the prosecution :
J
219
a. Limitation of Lee's cross-examination.
(1) Clear error was committed in limiting defendant \^
cross-examination of witness Clark Lei^ Defense counsel
tried to (jiiestion him upon a statement appearin<:: in his
book 'One Last Look Aiound''. (Diiell Sloan & Pearce,
1947: on page 84 he says ''Tokyo Rose's programs were
at least entertaining our troo])s".) The record proceeded
as follows :
Lee, Vni-588:18-25:
"Q. You recall, Mr. Lee, stating in your book,
*One Last Look Around,' comparing the broadcasts
of the defendant with those of Mother Tojjping, that
Tokyo Rose programs were at least entertaining to
our troops and there the parallel ends?
Mr. DeWolfe. T object to that as not proper cross-
examination, hearsay. Now he is going into a book,
based on hearsay.
The Court. The objection will be sustained."
This was legitimate impeachiJient. On the stand Lee
testified the defendant said she saw the purpose of the
Zero Hour "was to make them homesick and unhappy
about sitting in the mud". (Lee, ¥11-483 :2r3-484:2) : he
gave only qualified testimony about entertainment (Lee,
VIIT-563:28-564:3.) The prosecutor's objection was that
the statement in the book is based on hearsay, but an
impeaching statement is admissible eren thnnrjh if may he
based on hearsay. See:
3 Wig more on Evidence (3d ed.) Sec. 1040, p. 728,
"Tenor and Form of the Inconsistent Statement * • •
(4) The utterance may be in form of a joint state-
ment by the witness, signing a document with other
persons. If the statement did not accurately express
220
his own belief, he may absolve hiiTisclf by explana-
tion.'' (Italics in original.)
(Lee's book, of course, was over his own name, alone.)
A case directly in point is Healy v. Wellesley d B, St.
Ry. Co., 176 Mass. 440, 57 N.E. 703, in which a witness
was impeached through a time book prepared hy others.
The Court says:
(p. 708) ^^ Whether the entries were actually made
by Michael Healy or not was immaterial. His act in
turning the book in as the record of the time worked
by the men in his gang amounted to a representation
that they had worked the time therein set down, and,
as such, evidence of the entries was admissible to
contradict him."
The same is true of statements in ClarJc Lee's hook.
They amount to a representation that things are as he
says they are; and so may be used to contradict him
whether based on first or second hand knowledge.
Followed in: Eureka Hill M. Co. v. Bullion B. £ C.
M. Co., 32 Utah 236, 90 P. 157, 160; Steffen v. S. W. Bell
Tel Co., 56 S.W. (2d) 47, 49 (Mo.); State v. Harris, 64
S.W. (2d) 256, 259 (Mo.).
Since this was an error on a vital issue — whether de-
fendant's programs helped the Americans or the Japanese
— it was undoubtedly prejudicial. Alford v. U. S., 282
U.S. 687 was reversed for disallowance of one important
question on cross-examination. Reilly v. Plnkus, 94 L. Ed.
Adv. Ops. 79 was reversed because the petitioner was not
allowed to cross-examine medical witnesses on statements
appearing in certain medical books. Limitation of Lee's
cross-examination in itself requires a reversal.
I
221
(2) Cross-examination of Lee was further limited as
follows (Lee, VTI-553:22-554:12) :
^*Q. Mr. Ijee, you aie acquainted with Colonel
Fred Munson!
A. Yes, sir.
Q. And you met Colonel Fred Munson — withdraw
that.
You had known Colonel Munson for a number of
years prior to the war, hadn't you?
A. Yes, sir.
Q. You met him in Tokyo some time in early
September of 1945, isn't that right?
A. I did, yes.
Q. Didn't Colonel Munson tell you at the time you
met him in Tokyo tliat 'Tokyo Rose' was a Canadian
girl!
A. He did.
Mr. DeWolfe. Just a minute. T move to strike that
out. Don't answer, ^Ir. Lee, until 1 have a chance to
object. Object to it as hearsay and move to strike it
out.
The Court. The objection will be sustained."
The fact that anyone shodd hare said that ''Tokyo
Rose" was Canadian was com]3otent to impeach the orig-
inal identification of defendant through witness Fisen-
hart. It is not within the heaisay lule because it is )tof
offered to prove that "Tokyo Rose" iids ('(niadian but
to show the fact that a listener iooh her to l)e a Caiuididii.
This goes directly to the cpiestion of identification: vv-
gional differences in accent make it unlikely that anyone
born and raised in California would be taken foi- a (Ca-
nadian. The evidence should hav(^ been admitted foi- that
purpose.
222
(3) Cross-examination of Lee was again limited with
respect to the circumstances under which Lee took the
statement later introduced as Exhibit 15 {Lee, VIII-625:
17-626:1):
''Q. As a matter of fact, she could not obtain
counsel, that is to say, an attorney authorized to
practice law in the United States.
Mr. Hennessy. I object to that. There is no law
refusing counsel to anybody. That only applies to
court proceedings as stated in the Johnson case
Mr. Collins. This goes directly to the rule as an-
nounced
The Court. Read the question.
(Question read.)
The Court. Objection sustained."
Opportunity to obtain counsel is a relevant factor in
deciding whether a confession is voluntary. The Supreme
Court has repeatedly so held. See Watts v. Indiana, 338
U.S. 49, 53, 55, 57, 59; Turner v. Pennsylvania, 338 U.S.
62, 67 ; Harris v. So. Carolina, 338 U.S. 68, 70, 71, 73.
b. Limitation of Henschel's cross-examination.
Defendant was likewise unduly limited in cross-examin-
ing HenscheL At XXVI-2969 :7-ll :
"Q. Did you write any newspaper articles con-
cerning the defendant?
A. Concerning the defendant!
Q. Yes.
A. I have.''
and 2970:16-22:
*^Q. What year were they written!
A. This year.
223
Q. When you wrote these articles you had an
opinion as to the guilt or innocence of the defendant,
hadn't you?
Mr. DeWolfe. T object to that as highly improper,
Your Honor.
The Court. The objection is sustained."
Tt is always permissible to cross-exa)nine a witness on his
bias or preconceived opinion a<j:ainst the defendant. If
the witness had an opinion on the defendant's n:uilt when
he wrote the articles he presumably still had it when he
testified. Wigmore states the general principle, and al-
most cites our (question as a ty])ica] example. ?> Wirjmorr
on Evidence (3d ed.) sec. 940, p. 493:
a* * * ^Yi2 force of a hostile emotion, as influencing
the probability of ti'uth-telling, is still i*ecognized as
important; and a partiality of mind is therefore al-
ways relevant as discrediting the witness and affect-
ing the weight of his testimony.
a* * * Where it is thought worth while, however,
there is no objection to a direct (juestion, 'Are you
not anxious to have the defendant convicted?'
^'* * * A partiality of mind at some former time may
be used as a basis of an argument to the same state
at the time of testifying; though the ultimate object
is to establish partiality at the time of testifying."
(Italics in original.)
Cases involving ''a desire to have the opponent de-
feated" are collected in 3 Wigmore on Evidence (3d ed.)
sec. 950, notes 4 and, 5. In Sunderland r. U. S., 19 F. (2d)
' 202, 212, the Eighth Circuit held it reversible error to
refuse cross-examination as to whethei- a government wit-
i ness had been coaching other government witnesses, l^his
was an indirect manifestation of past desire to see the
224
defendant convicted. We asked Henschel directly whether
he had such bias. Cutting off this cross-examination at the
threshold was prejudicial error under Sunderland v. U. S.,
19 F. (2d) 202, 212, and Alford v. U. S., 282 U.S. 687,
supra.
c. Foundation for Moriyama's testimony.
Moriyama was asked to testify to alleged statements of
defendant over the Radio Tokyo microphone. The time
for these statements was fixed only as being '^between
May, 1944 and September, 1945" — a period of 16 months.
{Moriyama, XXIV-2551 :1, 2552:25.) Defendant objected
at the trial and submits now that a 10 months' period is
much too vague to serve as foundation to admit an in-
criminating statement. We print this passage in the ap-
pendix. (Moriyama, XXIV-2550:13-2551:10, 2551:21 -2552a:
15. App. p. 83.)
d. Other errors in Government's evidence.
(1) The following passage in the direct examination of
Mitsushio is open to the objection that it constitutes cross-
examination by the prosecution of its own witness :
Mitsushio, XIII-1325:1 9-1326:21. (See App. p. 85.)
(2) The prosecution tried to prove by Kenneth Ishii
that the defendant was aware of propagandistic broad-
casts on the Zero Hour. The \vitness Avas allowed to give
the following generalized, summary evidence :
Ishii, XVII-1829 :10-14. (See App. p. 86.)
The objections that this was too general and constituted
the conclusion of the witness should have been sustained.
(3) The following oc/curring on the redirect examina-
tion of Clark Lee speaks for itself:
225
Lee, VlTI-601 :1-10. (See A])p. p. 87.)
(4) On the recross-examination of Nii defense counsel
repeatedly tried to question him about his drinkin<z; habits.
This was objected to and excluded on the k^'^^^^ii^ ^>^ ii»»-
})roper cross-examination. Since the redirect examination
had dealt with this testimony as to alleged drinking at an
interview he had with defense attorney Tamba, the recross
was certainly within the scope of the redirect. The re-
direct had gone into the subject; moreover, the fact that
Nii was a heavy drinker would explain why drinks were
made available to him at the interview. In the appendix
we give both the redirect testimony and the questions
which were ruled out on recross. Nii, XXV-2733 :11-2735:G,
XXV-2736:21 -2737:1 9. (App. pp. 87-90.)
Thus limiting the recross examination was prejudicial —
certainly when added to all the other errors of the trial.
(5) Villarin testified on direct examination that he
visited Radio Tokyo in 1944; that he had been sent to
Japan by the Japanese army for indoctrination {Villariv,
XXVI-2850:14-20.) On cross-examination it was developed
that he had gone to Japan under threats against his life
{Villarin, XXVT-2858:14-17) but the defense was not al-
lowed to show who made the threats {ViJIariv, XXVT-
2858:18-21):
^^Q. Can you tell me what Japanese officer made
those threats against your life?
Mr. DeWolfe. Objected to as not proper cross-
examination.
The Court. The objection is sustained."
The identity of the person is a specific detail of a
subject which had been opened generally by the j)rosecu-
226
Hon. Defendant should have been permitted to ask the
question.
(b) Hall testified that he supposedly heard the defend-
ant over the radio while he was at various places in the
neighborhood of New Guinea. {Hall, XXVI-2885ff.) De-
fendant was not permitted to cross-examine him on the
point whether there were not other Japanese stations
much closer to New Guinea than Tokyo — and which he
might have heard instead. We quote this passage in the
appendix. {Hall, XXVI-2942 :4-2944 :1 1 ; App. p. 90.)
It was certainly proper to show the presence of Japa-
nese broadcasting stations within much closer range than
Tokyo, to impeach the witness' identification of a broad-
cast as coming from Tokyo.
(7) Finally at XVII-1818, XVIII-1847, the Court itself
put into evidence sections of (what is now) Exhibit 25
which were not offered hy the prosecution nor by the de-
fense. The odd pages are not identified by any witness
because the prosecution withdrew them before questioning
its witness. Both sides objected to this portion of the
present exhibit. We print the passage in the appendix —
XVTI-1818 :8-181 9 :25. ( App. p. 92. ) XVIII-l 847 :4-20.
(App. p. 94.)
(8) Denial of Public Trial.
Government Exhibits 16-21 consisted of phonograph rec-
ords supposedly made by persons monitoring defendant's
broadcasts. (Their text is contained in Exhibit 25.) When
played they were inaudible without earphones. Earphones
were provided for the judge, jury, clerk, reporter, defend-
ant, counsel and members of the press, but not for the
227
public spectators in the conrtronw. Dpfendant objected
that this procedure deprived her of a public trial in vio-
lation of the VTth Amendment. (XTX-2016-18.) Neverthe-
less, the exhibits were played out of the hearing of the
public. In effect this amounted to excludini^: the public
from one stage of the trial. This contention was overruled
in Gillars v. U. S., slip opinion, pp. 14-15. Tt cites no
authorities but decides on ^^common-sense". The connnon
sense of the situation is that the public was in no better
position with respect to these records than if it had been
observing the proceedings through a glass door. Tt could
see the persons in the court room, hiU could not hear the
evidence — the most important part. Tt was not even
claimed that earphones for the public could not have been
installed. Under the circumstances shutting out of six
exhibits was pro tanto a denial of a public trial in viola-
tion of the Sixth Amendment. See Davis v. U. S. (CCA.
8), 247 Fed. 394; U, S. v. Kohli (CCA. 3), 172 Fed. 919,
and Tanksley v, IL S. (CCA. 9), 145 Fed. (2d) 58.
(9) Exhibit 75.
Exhibit 75 (dated June 12, 1945) contained almost noth-
ing claimed to have been said by defendant. The parts
uttered by others were offered to rebut "the defendant's
contention, and * * * testimony that no ])roi)aganda was
broadcast on the Zero Hour and that it was an entertain-
ment program." (LIT-5859 — one broadcast in 'AM) — see
J Arg. 20 for number of programs: the )}ionitorinf/ station
at Hawaii kept a permanent file of the Zero Hour, irhirh
file was not produced, LTT-58r)r), 588f)-7.) But statcMiients
uttered by others are hearsay as to defendant unless
(a) they were made in her presence or (b) they wrw made
228
with her knowledge or (c) at least, they were typical of a
series of statements made with her knowledge. No at-
tempt was made to lay any such foundation or any founda-
tion. Over objection the statements of third persons were
admitted against defendant. (Witnesses on both sides had
testified without contradiction that after May 1944 defend-
ant did not usually stay during the Avhole program, but
left as soon as her part was finished. IX-787 :21 -788:13;
XLV-5012-.13.)
(10) "Confidential'' Exhibits on Rebuttal,
F.B.I, agents Tillman and Dunn were called in rebuttal
to testify about the manner in which they took statements
from the witness Reyes, including the question whether
Exhibits 52 and 54 were complete and correct accounts of
what he told them. On cross-examination it developed
that at least one other statement had been taken, and that
it was apparently included in a report made by the agents
to members of the Attorney GeneraPs staff. (LI-5784:20-
5785:4, 5839:13-22.) The government refused to produce
these documents on the ground that they were ^^confiden-
tial". (LI-5786-93, 5839-40.) (Tillman had previously per-
jured himself by denying the existence of this statement:
sec Tillman, LI-5758 :14-5759 :4 ; LI-5784:10-16.)
Two questions arise on this point. The first is whether
5 U.S.C. 22 (on which the government based its objection,
LI-5788, 5790) is relevant at all; the second is whether the
government has not in any event waived the objection by
eliciting direct testimony on the subject.
(a) 5 U.S.C. 22 says nothing about confidential evi-
dence. It merely gives executive department heads author-
229
ity to ])rescribo regulations "'not incotisistenf with law"
for tlie condiK't of their departments. The very phrase
''not inconsistent with law" indicates they are not priven
power to modify the ordinary rules of evidence.
Certainly ex parte recrulations modifying: the rules of
evidence cannot have any validity in criminal cases. Con-
ceding, for purposes of argument, that such regulations
may hind civil litigants (Boske r. Coynminqore, 177 T^.S.
459; Ex parte Sackett, 74 F. (2d) 922), it would be con-
trary to every element of fair ])lay to allow them to he
used in a criminal case. For if de])artmental reguh^tions
could change the rules of evidence, the government would
have power to make and unmake rules of evidence in its
own favor in cases to which it is a party. Certainly, the
whole system of criminal evidence is not intended to he
subject to that kind of unpredictable change. For the
government thus to alter the rules of evidence at will in
cases to which it is a party, would raise serious fjuestions
of due process. Statutes are to be construed to avoid rais-
ing serious constitutional questions, if possible. (Zh S. r.
CJ.O., 335 U.S. 106, 120-121.) Upon this basis, the phrase
''not incotisistent with law'' in 5 I^.S.C. 22 must be con-
strued as withholding authority to change the rules of
evidence in cases to which the Ignited States is a party.
So held in IJ, S. v. Andolscheck, 142 F. (2d) 503, 50n
(CCA. 2) : U. S. V. Beeknian, 155 F. (2d) 580, 584 (CCA.
2); U. S. V, Ragen, 180 F. (2d) 321, 320 (CA. 7): F. S.
ex rel. Scklueier r. Watkins, (u F. S. 550, 501, affd. 158
F. (2d) 853.
Apart from this section, the mere fact that a statement
taken bv an investigator and is turned over to the United
230
States Attorney does not make it confidential, (cf. LI-
5787:6-13.) Suppression of the report was therefore
error.
(b) Furthermore, the "government waived any claim of
^ * confidential matter'' when it elicited direct testimony
from Tillman and Dunn. Conceding for purpose of argu-
ment that the report could not have been demanded origi-
nally, the situation changed Avhen the government put on
direct testimony within the scope of which the report fell.
The goveniment's position is analogous to that of a de-
fendant: the government cannot call him, but if he takes
the stand it can cross-examine him within the scope of
his direct. The government cannot have its cake and eat
it, too: get the benefit of the direct testimony and then
throttle cross-examination on the ground that what it
brings forth is ^^confidential". {U. S. v. Krulewitch, 145
F. (2d) 76, 79 (CCA. 2).) See, also, cases cited in pre-
vious section and 8 Wig more on Evidence (3d ed.). Sec.
2378 a, especially pp. 789-98 showing the lack of justifi-
cation for the ^'official secrets'' privilege.
(11) Simimary. The foregoing errors during the gov-
ernment's evidence require a reversal, either standing
alone or in conjunction with the numerous errors pre
viously discussed.
<
4. ERRORS ON EXAMINATION OF DEFENSE WITNESSES.
a. Exclusion of impeaching: reputation evidence by Poumy
Saisho.
The defense asked Foumy Saisho to state the reputa-
tion for truth, honesty and integrity of the prosecution
231
witnesses Mitsushio, Oki and Ishii. The District Court
did not let her answers go to the jury (Saisho, U. 407-
408):
(See Appendix p. 94.)
The reputation of Oki is referred to 'Hhis community",
which sufficiently identifies it as the community in which
Oki lived. The deposition was taken in Tokyo, Japan (R.
399) ; before it was read Oki testified that he resided in
Tokyo. {Oki, IX-658:r)-7.) The questions relatin<r to Ishii
and Mitsushio, though more general in form, are evidently
directed to the same locality. Both had testified before
the reading of the deposition that they lived in Tokyo.
(Mitsushio, XT-987:12-19; Ishii, XVn-1821 :1 2-1.1.)
A witness can always be impeached by evidence of a
bad reputation for truth, honest}^ and integrity in the
comnmnity in which he lives. 5 Wiqmore on Evidence (3d
ed.), Sec. 1615, pp. 486 ff.; Sawyear v. U. S., 27 F. (2d)
569, 570 col. 2 (CCA. 9): SwaffovfJ r. U. S., 25 F. (2d)
581, 584.)
Refusal to allows any questions upon this subject was
palpable error. As to Oki, at least. Miss Saisho's answer
was highly damaging. Rejection of hci* answers as to all
three witnesses was prejudicial.
b. Appeals to race prejudice in cross-examination of defense
witnesses.
(1) While the prosecutors claimed defendant to be
American when they appealed to law in order to convict
her of treason, they called her Japanese when they ap-
pealed to prejudice {Ince, XXXI-3543 :1 4-3544 :1 ) :
**Q. Now, the defendant was not the only .lapancse
with whom you were friendly, was she?
A. Would you restate the question, please!
232
Q. I said, the defendant was not the only Japanese
^vith whom you were friendly, was she?
Mr. Collins. I object to that on the ground it is
highly improper. There is no evidence in here what-
soever that the defendant is Japanese.
Mr. Knapp. I am cross-examining.
The Court. Read the question, Mr. Reporter.
(The reporter read the last question.)
The Court. He may answer. The objection will be
overruled.
A. I don't feel that I was friendly with any Japa-
nese, ever.'' Jj
(2) In the following questions asked of Reyes about
Ince the prosecution tried to appeal to whatever prejudice
any juror might have against interracial marriages
( Reyes, XXXII-3705 :20-3707 :5) : ;|
(See Appendix p. 95.)
c. Errors on direct examination of defendant.
(1) At XLVI-5161 the defendant was not permitted to
testify that she was told her voice was nothing like that
which the speaker had heard in the South Pacific. As al-
ready stated, the reactions of listeners are relevant on
the question of identification. In this instance we have
an expression of reaction of a man upon hearing the de-
fendant's voice for the first time — a clear example of res
gestae. The record reads as follows (Defendant, XLVI-
5160:7-17, 5161:5-18):
(See Appendix p. 97.)
Exclamations following immediately upon some exciting
cause are always admissible as res gestae. The theory
behind them was clearly expounded by the Supreme Court
233
of Arizona in Keefe v. State, oO Ariz. 298, 72 P. (2d) 425,
(jiioted at len<!:th in 6 Wigmore on Evidence (8d ed.), Sec.
1745, pp. 132-3,
The following sentence is noteworthy (72 P. (2d) 425,
427):
'^A spontaneous exclamation may be defined as a
statement or exclamation made immediately after
some exciting occasion by a participant or spectator
and asserting the circumstances of that occasion as
it is observed by him/*
The present case obviously satisfied the requirement of
immediacy: the interview between defendant and the
newspai)er correspondent was still in progress when the
remark was made. The above quotation also shows that
the rule is not limited to ''exclamations" as the term is
used in grammar. The legal meaning of a ''spontaneous
exclamation" is ''statement or exclamation made imme-
diately after" etc. Tt is therefore no objection that gram-
matically the Australian correspondent's remark is prop-
erly terminated with a period rather than an exclamation
point. Tt definitely satisfied the above formula and should
have been admitted.
Federal cases upon the same subject are as follows :
Standard Ace. Ins. Co. v. Heat field, 141 F. (2d) 648,
651 (CCA. 9); Overland Construction Co. v. Snyder, 70
F. (2d) 338, 338-9 (CCA. 6); Williajn C. Barry, Inc. r.
Baker, 82 F. (2d) 79, 81 (CCA. 1). Some of the above
authorities say that the statement "must relate to the
main event"; that recjuirement is satisfied hero. Reject-
ing this evidence on negative identification was })rejudi-
cial error.
234
(2) At XLVII-5224:l-22 defendant is not permitted to
testify to conversations with Brundidge immediately fol-
lowing the signing of Exhibit 15. From General Head-
quarters where defendant signed the exhibit, she, Hogan
and Brundidge went over to the Radio Tokyo broadcast-
ing rooms and thence to the Dai Ichi Hotel. Part of the
time defendant and Brundidge were together without
Hogan 's presence. The Court ruled out as hearsay all
conversations during that time.
We have already made the point that there is prima
facie evidence that Brundidge was acting on behalf of the
United States when he took the trip to Japan ^vith Hogan.
Taking the admitted (Department of Justice paid fare)
and excluded (Exh. BV identification — Brundidge 's pass-
port) evidence together, the evidence is certainly suffi-
cient on that issue. Since Brundidge was acting on behalf
of the United States, defendant's conversations with him
were not hearsay, and should have been received.
(3) At XLVII-5209:1 5-521 2:15 the defendant tried to
testify that when she was released from custody in 1946
Major Swanson, one of the authorities in charge of the
prison, told her the release was with the consent of the
Justice Department. The passage is set forth in the ap-
pendix, p. 98.
Since Major Swanson was her jailor and was identified
as one of the American authorities, his statements are
the statements of an agent of the United States, and
therefore not hearsay. The evidence should have been
admitted.
236
d. Errors on examination of miscellaneous defense witnesses.
(1) Although the prosecution asked about Tnee's pri-
vate life on the pretext that it had ^'sonie bearing on the
witnesses and their relation, and so on" (XXXTl-^TOfi:
f)-7), it objected even to an account of his military activi-
ties just prior to his capture. Certainly the military duties
which Ince performed when he was captured could prop-
erly be shoA\Ti as a background for his testimony of events
after he was captured. The following ruling was there-
fore error (Ince, XXXI-3498:13-25) :
^*Q. Were you assigned any special duties while
you were in the Philippines?
A. Yes, sir, I was taken into the army as the chief
censor in the Censorship Branch of General MacAr-
thur's headquarters as pertained to all coiiiDieroial
radio broadcasting in the Philippines.
Q. Pursuant to your duties then, did yon run The
Voice of Freedom?
Mr. Knapp. Objection, Your Honor, as to what
happened at Corregidor. T think the preliminary
(4uestions covered it fully. It has no relation or bear-
ing on the issue of the defendant's guilt or innocence.
The Court. The oh Section will he sustained.'^
(2) We have already noted the prosecutor's misstate-
ment of the record in connection with the cross-examina-
tion of Miss Ito. At other times he stated the record cor-
rectly— that she had not testified to any conversations
with defendant about her radio work — but nevertheless
insisted on "cross-examining" Miss Ito upon such con-
versations. We quote the passage in the appendix. (Tto,
XL-4527:16-4529:2, App. p. 100.)
The prosecutor himself admits that there was no testi-
mony regarding conversations about announcing: the
236
cross-examination is therefore patently improper. Appar-
ently the prosecutor himself sensed this since shortly
afterwards he made the untrue statement that the direct
examination had dealt with conversations about broad-
casting. (XL-4529:22-3.)
(3) The following was likewise improper cross-exami-
nation in Miss Ito's testimony (Ito, XL-4532:2-13) : J|
*^Q. She told you that she liked it because it was
better pay than a typist received at Domei, didn't she!
Mr. Collins. I submit that is incompetent, irrele-
vant, immaterial.
Mr. De Wolfe. It is highly material.
Mr. Collins. It is highly improper cross-examina-
tion.
The Court. The objection is overruled. Read the
question.
(Question read.)
The Witness. The pay was definitely better.
Mr. DeWolfe. Q. Did she tell you that— not
whether it was better, but did she tell you that?
A. Yes.''
(
(The direct examination of Miss Ito dealt solely with
becoming stranded in Japan and the defendant's expres-
sions of feeling as between the United States and Japan.)
(4) For the same reasons the following was improper
cross-examination of Miss Ito (Ito, XL-4538:20-4539:7) :
(See Appendix p. 101.)
This practice of developing new matter on the cross-
examination of Miss Ito was especially reprehensible since
the prosecution had her under subpoena as its own wit-
ness. (Exh. CC, XL-4544.) Anything which the prosecutor
wished to ask her he could ask her — under the rules gov-
erning direct examination. What the prosecutor did, how-
237
ever, was to develop part of his own case in defiance of
the restraints of direct examination. That he should even
attempt to do so gives a measure of the spirit of unfair-
ness \vdth which the prosecution approached the case.
(5) At XLIII.4711:11-4712:4 the witness Martin Pray
was not allowed to testify that defendant was held in-
communicado at Sugamo Prison:
(See Appendix p. 102.)
Defendant herself testified to this fact: the above rulinu:
deprived her of impartial corroboration. We have already
shown that being held incommunicado hindered defendant
from gathering and preserving evidence and therefore had
a bearing on denial of a speedy trial.
e. Errors in the cross-examination of Reyes.
Reyes was subpoenaed by both sides. (Reyes, XXXIII-
3715:1-3; Def. Ex. V, XXXIV-3942 is the government's
subpoena.) He had previously given two statements to
the F.B.I. (Exhibit 52, XXXIIT- 3741 and 54, XXXI 11-
3825.)
He took the stand on behalf of the defendant. His cross-
examination was almost wholly directed toward imjieach-
ing him with Exhibits 52 and 54.
Instead of using those documents legitimately, however,
the prosecutor brought them into the case with every
variety of improper question.
(1) The most serious of these involve repeated mis-
statement of the record and suggestion to the witness that
he testified to something which he never said (Reyes,
XXXIII-3748:21-3749:12):
238
^*Q. And you testified here Friday under oath and
this morning that everything you told the agents was
true, didn't you!
A. (hesitating).
Q. Didn't you, or can't you remember now!
A. Yes, I did, sir.
Q. And you testified here a few minutes ago that
everything in exhibit 52 was true, didn^t you, Reyes?
Mr. Collins. Just a moment, please. T submit, if
your Honor please, it is argumentative.
The Court. The objection will be overruled, he may
answer.
Mr. DeWolfe. Q. Didn't you, Reyes I Didn't you
so testify!
Mr. Collins. Just a moment, let the witness an-
swer the question.
The Court. Answer the question.
A. I believe I did, sir."
The prosecutor knew the ditference between testifying
that what Reyes had told the agents was true and tes-
tifying that the contents of Exhibit 52 were true. He
falsely put the latter statement into Reyes mouth — until
then Reyes had testified only that what he told the agents
was true. The suggestion (XXXIII-3749:l-2) about the
truth of Exhibit 52 was improper and constitutes mis-
conduct such as mentioned in Berger v. U, S., 295 U.S.
78, 84 (^'misstating the facts in his cross-examination of
witnesses"). At XXXIII.3751 :16-3752:13 the prosecutor
(over objection) then gets Reyes to ''admit" that this
"testimony" is "false" — i.e. gets the witness to admit
the "falsity" of ''testimony^' which he never gave. This
reference to supposed testimony which was never given
is repeated once more at XXXIII-3753:13-3754:13.
239
Under Beryer v, U. S,, 295 U.S. 78, 84, thrco references
j)uttin<i: words into a witness' mouth and then ehar^njs;
hini with falsity on what he never said, is certainly re-
versible error.
(2-4) Other errors consist larirely in ar<iunientative
questions and in trying to introduce the o])inions and con-
clusions of Exhibits 52 and 54 as independent evidence.
(We have already noted the law on this phase: the im-
peaching document itself need not satisfy the require-
ments of testimonial evidence, but when the witness is
asked to give independent evidence on the subject his
testimony must meet the same requirements as testimony
on any other point.)
This type of question starts at XXXII-3691 :18-3G92:2:
**Q. And you were easily influenced?
L Mr. Collins. T submit, if your Honor please, that is
highly improper cross-examination and it is argu-
mentative and speculative, asking for the opinion and
conclusion of the witness.
The Court. Read the question.
(Question read.)
The Court. He may answer the (juestion. The ob-
jection is overruled.
A. In certain matters, yes."
This question clearly calls for a conclusion and is argu-
mentative. Immediately afterwards the prosecutor read a
series of conclusions from Exhibit 52 and asked whether
the passage was ''true or false". (XXXllI-:]744:20-874():
5.) Since this takes the im])eaching stateirient j^ro lanto
into the realm of substantive evidence, it is subject to the
objection that it calls for a conclusion.
240
(5) Again at 3747:6-3748:9 (App. p. 240), the objec-
tion should have been sustained that the questions are
argumentative.
(6) XXXIII-3769 :20-3771 :6. This passage is set forth
in the appendix. It is a highly improper mode of examina-
tion— asking about the ^'falsity'' of the contents of a
document which is not produced, not put into evidence, nor
even sho^vn to the witness. (App. p. 104.) ^
(7) At XXXIII-3776 :5-17 the prosecution asks the wit- '
ness about the nature of the contents of Exhibit 53 — over
the objection that the document speaks for itself. (Tt is
introduced at XXXIII-3778.) The passage is set forth in
the appendix and is subject to the objection which was
made. (App. p. 105.)
(8) At XXXIV-3840: 13-21 we have the following: 1
^*Mr. DeWolfe. Q. Does this document that I
have handed to you appear to be a script of the Zero
Hour program and an accurate one of the Zero Hour
program on November 17, 1943?
Mr. Collins. I object to that on the ground it is
calling for the opinion and conclusion of the witness
and calls for nothing but hearsay.
The Court. If he knows, he may answer. The ob-
jection may be overruled.
A. I do not know."
The question clearly calls for a conclusion. (It is also
compound and complex.)
(9) In a supposed attempt to impeach Keyes, the
prosecutor repeatedly read him purported scripts and
asked whether Reyes had broadcast the material which
they supposedly contained. In most instances Reyes de-
241
nied it, (Reyes, XXXIV-3837 :8-19, 3838:5, 3841:11-25;
3843:9-3844:20; 3858:22-3859:3; 3859:22-3860:12; 3861:8-
3862:8; 3862:18-3863:10; 3864:13-3865:14; 3865:20-3866:7.)
The (juestions were relevant, if at all, only as foundation
questions for impeachment. But in none of the above in-
stances did the prosecution follow up with any proof that
Reyes (or any one) had actually broadcast the material
which was thus brought before the jury. It is certainly
not unreasonable to infer that this was intentional mis-
conduct, in that the prosecutor insinuated matters to the
jury which he knew he could not prove. But since the
questions were valid only as foundation for impeachment,
they became legally incompetent when the impeaching evi-
dence tvas not offered. The Court should so have in-
structed the jury on its own motion. When evidence which
is only conditionally admissible is not followed up, the
Court must, of its own motion instruct the jury to dis-
regard it. See Morrow v. U, S., 11 F. (2d) 256, 260
(CCA. 8), testimony of alleged co-conspirator admissible
only if followed by proof of the conspiracy, which was not
offered. The same case holds failure to give such an in-
struction to be reversible error. No specific instruction
was given here.
(10) At XXXIV-3868:6-24 and again at XXXTV-3869:
19-3870:8 the prosecutor was permitted to ask whether
certain photostats "purport to be Zero Hour scripts — an
obvious call for a conclusion. The passages are set forth
in the appendix. (Appendix, p. 105.)
242
III.
CONCLUSION.
For the reasons stated in Part I of this brief, we submit
that the judgment should be reversed with directions to
discharge the defendant. Under all circumstances the
judgment should be reversed.
Dated, San Francisco, California,
September 6, 1950.
Eespectfully submitted,
Wayne M. Collins,
Theodore Tamba,
George Olshausen,
Marvel Shore,
Attorneys for Appellant.
(Appendix Follows.)
Appendix.
Appendix
Page 18.
Tsuneishi, V-321.
A. (continuing). I wish to state that at that time Japan
was suffering a speedy defeat, and so from my viewpoint
it was satisfactory that if we could produce any broadcasts
that were then appealing or would appeal to the G.I/s.
But I figured that the Japanese troo})s — excuse me, that
we would wait until the Japanese troops put up severe
resistance either in the Philippine Islands, in Okinawa, or
on the mainland of Japan, and when they were thus sepa-
rately resisting, then the program would continue. From
that time the propaganda would be greatly increased.
Until that time I felt that it could be just a general appeal
to the troops.
Mr. Collins. Q. Then the Japanese had thereafter no
further successes and in consequence you did not try to
convert the program into a propaganda program, isn't
that a fact?
A. It was unfortunate, but the opportunity did not
present itself for me to present the real true propaganda
broadcasts that I wished to.
Page 28.
Witnesses who claimed to have heard defendant's broadcasts.
Gilbert Velasquez— XVIU-1867E, ;
XVin-1877— ''rejectees'' getting all the girls at
home.
Finschhaven, New Guinea. XVIIM 893 :2-()-()-7
P.M.-i-o Toh/o tiwel; XVlTI-1904:7-9 (3 P.M.
2
= 4 P.M. Tokyo time. (Eastern New Guinea was
on Australian wartime, Sherdeman, XIX-1996:9-
14, 1977:6-8, 1984:12-17.)
XVIII-1904 :21-23 — Japanese spoken on program!
XVIII-1879 — 'S\dves and sweethearts driving in
park at home, listening to radio '\
XVIII-1818— November, December, 1944, Leyte,
Philippines.
XVIII - 1907 :4 ; 1914 :24 - 1915 :3 — ' ' just before
Christmas ' '
XVIII-1910:6-7-7 P.M..-=8 P.M. Tokyo time.
XVIII-1882:16-19; 1926 :13-14— Dec. 23 or 24, 1944
(Dec. 23, 1944, was a Saturday and Dec. 24, 1944,
was a Sunday!)
XVIII-1880-81 — Jai3anese will treat you right if
you surrender, no sense in getting killed. Feb.,
March, 1945, Leyte, Philippines.
XVIII-1920:12-16— 6-7 P.M. = 7-8 P.M. Tokyo
time.
Sherdeman— XlX-197m.
XIX-1977— Jan.-Feb., 1944, Port Moresby, New
Guinea — listen to ballad with your best girl.
XIX-1978— June, 1944, Milne Bay (New Guinea)
ice cream soda at cool corner drug store.
XIX-1979— June, 1944— Los Negros, Coconut
Grove with your best girl, plenty of Coconuts but
no best girls.
XIX-1988:9-11— all programs at 5-6:30 P.M. Bris-
bane time = 3-4:30 Tokyo time.
XIX-1986 :22-5 — Tagalog spoken on program.
Sutter— XX-2022{[.
XX— 2026:7— Sept. 4, 1944, Saipan— Saipan was
mined; U. S. troops would be given 48 hours to
leave the island, otherwise would be blown to bits.
XX-2061 :6-8— between 4 and 8 P.M. (This was
ahnost two months after the Americans had se-
cured Saipan, July 9, }944— Sutter, XX-2103:18-
20.)
^00^— XX-2110ff.
XX-2116— Dec, 1943.
XX-2117— Gilbert Islands— wouldn 't you like to
be dancing with loved one? Jan., 1944 — aren't
folks asking you to come home!
XX-21 17-18— Feb., 1944— boys at home making
big money and can afford to take girls out.
XX-2118 — Between Gilbert and Marshall Islands.
— Feb., 1944 — demand from commanding officer to
be sent home — don't stay in stinking jungle while
some one else is out with your girl friend.
XX-2118-19 — *4eave soon if want to go home —
your fleet practically sunk".
XXI-2194-6 — congratulations to Comdr. Perry on
safe landing '^but you'll be sorry".
All of these broadcasts were received in the Gilbert and
Marshall Islands ivhile it was still light between 5 :30-6 :30,
6-7 or 4-6 P.M. Hoot,
XX-2142:l-5, 2151 :18-2152:4, XXl-21(i9:7-10, 2179:
13-17, 2194:20—4-6 P.M. in the Gilbert Jslands =
I'S P.M. Tokyo time; 5:30-6:30 -= ;^;')Y^;;;.>7y Tokyo
time; 6-7 = 3-4 Tokyo time.
Cavanar—XXI-2216f(.
XXI-2217— May, Aug., 1944, en route to Saipan.
XXI-2218— 4-8 P.M.
XXI-2226 — '^boneheads on mosquito infested
islands — remind you of dancing with your girl at
Coconut Grove in Los Angeles. ( ' ' boneheads ' '
was actually an expression Avhich defendant used
jocularly on her program — see Exhs. 16-21, 25).
XXI-2231 — ^^ Music for you'' was theme song.
(*^ Music for you'' is a phrase occurring several
times in Exhs. 16-21 and 25, which the witness had
heard— XXI-2221 :15-17, 2224 :16-18— but it is not
the theme song, ** Strike up the Band" was the
theme song of the Zero Hour — see Exh. 25.)
Ti^omp5on— XXI-2242ff.
XXI-2251— Dec. 26, 1943, Cape Gloucester, New
Britain.
XXI-2252 — report of troop movements.
XXI-2255 :2-4— fixes Dec. 26, 1943 because on that
date landed at Cape Gloucester. (December 26,
1943 was a Sunday.)
XXI-2252— March, 1944.
XXI-2252 — imagine yourself with your best girl
in Southern California drive-in — give up this
fruitless fight.
XXI-2272— between 4 and 8 P.M.
(?tZmore— XXIII-2451ff.
XXIII-2549— played ^^Moon Over Miami" and
asked ^* how's the moon over Tinian, tonight?"
XXIII-2476— during combat on Tinian.
XXTTI-2479 :15-18— f ull moon at the time (the
assault on Tinian lasted from July 24 to Aug. 1,
1944, L-5584 :13-17 ; there was no full moon during
that period— L-5561:25-5562:2).
Cowan— XXY1.2809n.
XXVI-2818— Sept., 1944, Oct.-Nov., 1944.
XXVI-2820—^' early morning, dusk'' in Oct.-Nov.
— ''you have been deserted — your ships have left
you — you will be driven into the sea''.
XXVI-2844 :9-ll — no recollection that voice over
air was identified.
^a//— XXVI-2885ff.
XXVl-2892-3— '^v4th your favorite girl friend
having an ice cream soda", etc.
XXVI-2896-9, prediction of troop movements.
XXVI-2902 — Australians fighting in New Guinea
while Americans running around with their wives.
XXVI-2904 — 21 reasons why you couldn't go to
sleep with a redhead.
XXVI-2928 :7-17— he had reported the alleged
predictions of troop movements to his officers but
movements were made as scheduled any^vay.
XXVI-2936:4-10 — movements made exactly as
predicted, despite foreknowledge of ''Japanese
radio ' '.
XXVI-2938 :21-2— dark when he heard these
broadcasts.
^en6'67ie^-XXVl-2948ff.
XXVI-2959-6() — prediction of troop movements.
XXVI-2960-63— Oct. 24-5-6, 1944— Lcyto, broad-
cast on Battle of Lovtc Gulf.
i
XXVI-2961 :6-16— at night, during air raid black-
out.
XXVI-2988 :14-16-9, 10 or 1 1 P.M. Philippine Time
{=10, 11, 12 P.M. Tokyo Time).
Page 32.
Witnesses testifying to alleged confessions of defendant.
Clark Lee testified —
defendant said that she broadcast about unfaith-
ful wives and sweethearts (VII-486)
On cross-examination he said he got this item
from Harry Brundidge's notes. (VTII-650:22-25,
652:20-653:7.)
(Defendant testified she denied such broadcasts
XLVI-5157:9-25). Furthermore we claim the
whole interview was under duress (see infra).
Kramer testified —
defendant said that there was some discussion
at home over the possibility of her being charged
with treason against the United States. She did
not feel she had committed any treasonable act,
but the charge might possibly be made (XIII-
1363) that defendant said she was badgered by
the Japanese police to take out Japanese citizen-
ship but she dropped the idea because she was
not the head of a family and it was too much
trouble (XIII-1364). (Defendant testified that
she had said this was the reason she gave the
Japanese police for not taking out Japanese
citizenship. (Def. XLVIII-5374:6-23.) She also
testified that she had told Clark Lee she some-
I
times thought she was doing wrong in not having
enough gumption to disobey army orders. (XLTX-
5446:21-5447:22)). Thai defendant said that by
a process of elimination she inferred that ** Tokyo
Rose'' had been applied to her, since she had the
most English on her program. (XIIT-1 365:20-25.)
(Defendant testified that she could not recall
having told him this, but that she wasn't sure.
(XLVIIl-5376 :21-5378 :20).)
In addition to some innocuous assertions, Cramer made
the very interesting statement that defendant told him
she took no active steps after her marriage to acquire
Portuguese citizenship, because that might look as if she
was running aivay from possible charges in the United
States.
The interview mth Dale Cramer, we claim, was also
given under duress. We discuss this issue infra.
Merritt Gillespie Page testified —
that defendant said that Maj. Cousens had told
her she was to be a broadcaster on a propaganda
broadcast, that Radio Tokyo wanted to get a
woman announcer with a less stereotyped voice in
order to get away from the coarser type of prop-
aganda. (XIV-1424.)
(Defendant testified that the only thing Cousens
(or any one) told her was that the program
would be purely entertainment (XIjV-4999:3-10) ;
that she so told Page (XLIX-5453:21-25) and that
Cousens referred to the Japanese propaganda
purpose only obliquely when he said they were
8
I
fooling the Japanese. (XLVI-5103:1-5105:1;
XLIX-5506 :18-5508 :4, 5456 :25-5457 :2).)
that she thought the broadcasting would be good
experience and she wanted to entertain the
troops and it would supplement her income.
(XIV-1425:17-19.) (Defendant denied she ever
said she took the job for experience. (XLIX-5454:
1-17).)
that she did not know whether Cousens and Ince
broadcast voluntarily or not. (XIV-1426:17-18.)
(Defendant confirmed this, saying she did not
know where Cousens or Ince were at the time or
how to contact them, so did not want to commit
herself. ( XLIX-5454 :18-5455 :5 ) . )
James Keeney testified that defendant said —
that broadcasting paid more money and was more
interesting than typing, she enjoyed the contacts
and surroundings and thought she would find a
future in radio. (XIV-1405.)
(Defendant confirmed tliat the broadcasting was
more interesting, though she didn't know whether
she had said it, confirmed that she may have said
she enjoyed the contacts at Radio Tokyo, since
it was true (elsewhere she testified she was glad
to have had contact with the prisoners of war,
XLVII-5317:14-15), denied she said she took the
job because it paid more money — it did not pay
more: denied that she said she thought she'd
have a future in broadcasting (XLVIII-5367:25-
5369:21), that after a radio account of a ''Time"
> article whicii had been received, the Zero Hour
staff decided by a process of elimination that it
must refer to her. (XIV-1406:6-16.)
(Defendant testified on the contrary that the
Zero Hour staff concluded that "Tokyo Rose'*
could not refer to her, and Mitsushio said it could
not refer to any one on Radio Tokyo. (XLV-
5053:22-5054 A :2.) Ruth Hayakawa testified that
some of the staff thought "Tokyo Rose*' must
refer to her (Hayakawa) R. 385-G. Foumy Sai-
sho testified that Oki told her he ought to claim
half the royalties for "Tokyo Rose" — (indicating
that he considered his wife, Mieko Furuya Oki,
to be "Tokyo Rose*'. (R. 403).)
Wm. E. Fennirnore testified —
that he interviewed the defendant with Sgt.
Page; he partly follows Page's testimony to the
effect that defendant said —
that Maj. Cousens told her they were interested
in securing a new voice, not stereotyped, for a
new propaganda broadcast; that she wanted the
money involved, she thought it would be good
experience, that she thought it would be enter-
taining to the troops.
Fennimore added details of his own in saying
she said that she referred to dancing with your
wife or best girl to the tune of "Stardust" — and
asking "I wonder what she is doing now?"
(The defendant repeatedly denied having talked
to Fennimore about the case at all (XLVni-5366:
10
15-19, see generally XLVIII-5364 :l-5367 :4, also
XLVIII-5372 :15-5373 :9, XLIX-5455 :6-5456 :9) ) .
Page 74.
Johnson v. Eisentrager, 94 L. Ed. Adv. Ops. 814, 821. J
** American doctrine as to the effect of war upon
the status of nationals of belligerents took permanent
shape following our first foreign war. Chancellor
Kent, after considering the leading authorities of his
time, declared the law to be that ^* * * in war, the
subjects of each country were enemies to each other,
and bound to regard and treat each other as such'.
Griswold v. Waddington, 16 Johns (N.Y.) 438, 480.
If this was ever something of a fiction, it is one vali-
dated by the actualities of modern total warfare. Con-
scription, compulsory service and measures to mobil-
ize every human being and material resource and to
utilize nationals — wherever they may be — in arms,
intrigue and sabotage, attest the iDrophetic realism of
what once may have seemed a doctrinaire and arti-
ficial principle. With confirmation of our recent his-
tory, we may reiterate this Court's earlier teaching
that in war 'every individual of one nation must
acknowledge every individual of another nation as his
own enemy — because the enemy of his country'. The
Rapid, 8 Cranch 155, 161."
Page 78.
Defendant, XLIX-5505 :9-5506 :7,
^*Q. Did you fear to stop, quit working on the
Zero Hour program?
A. Yes. In fact, I asked a couple of times to quit.
Q. Did you fear to quit?
A. Yes. I always got the same answer.
Q. What was the answer?
11
A. It would be a ^ood idea not to quit. You know
the consequences.
Q. Why did you fear to quit?
A. Well, I knew that I was an alien in Japan.
They would have — if I did not agree to their orders,
I could have been put away for good.
Q. Did you fear that!
A. Yes.
Q. And so because of that fear did you continue
on in your employment?
A. That was the only reason I continued.
Q. Did you at that time know the consequences of
a refusal to continue to broadcast?
A. Yes.
Q. What were the consequences?
A. If you just refused, they would just take you
away, the kempei may question you, and you may
never be heard of.
Q. Did you fear for your life?
A. Yes, that is understood.'*
Page 79.
Defendant, XL V-4994: 12-4995-1.
*'I asked him why he was at Radio Tolc^^o, and 1
asked him why Wallace and Reyes were there. He
explained that they had been captured in the south,
and they had to fill out, or they were asked to fill
out their biography by the Japanese Army, their
occupation, and so forth, and, well, they made out a
report to the effect that they had been experienced
in radio, and they had been selected by the army and
ordered to Radio Tokyo to work in the Radio field
for the Japanese Army. It was Major Cousens who
told me thai they were under threat of being ex-
ecuted if they refused an army order, and therefore
12
they were all three of them in that predicament at
Radio Tokyo. They were writing script.''
Defendant, XLV-4996 :9-4996 :18 ; also 4997 :2.9. I
^*Well, with Major Cousens it was specifically his
trip from Malaya up to Radio Tokyo and all of the
various prisons and camps and the tortures he went
through and the treatment on the ship, on board ship,
the sicknesses all the prisoners of war had gotten on
board the ship. He had witnessed all these executions
in Burma, also in Malaya. And with Major Ince it
was the tortures in Corregidor, with Reyes it was the
treatment in this jail, in this prison camp in the
Philippines/'
**He said that this Major Tsuneishi had direct and
complete control of these prisoners of war, that he
had ordered them to Radio Tokyo under threat of
death if they did not obey the army orders; that is
why they had no choice. Major Cousens said they
wanted to live out this war, and so they were going
to just do as they were told."
Defendant, XLVL5079: 13-22; also 5080:10-15.
'^ Major Cousens told me that, constantly reminded
me that, never to disobey the Japanese army mili-
tarists, because they were brutal and sly and cunning
and he said to place all my confidence in him and act
as he instructed me, but never say anything against
the Japanese army officers or army orders, as all the
boys do^ATi at Bunka, and specially one in December,
had been taken away from Bunka for refusing to
obey army orders. He never heard anything from
him. Then later on, about in March, Captain Kalh-
fieisch was taken away to be executed.
I
13
Q. Now, did you learn what happened to him
[Captain Ince] as a result of that?
A. He was taken off the Zero Hour, he was going
to he taken out of Bimka camp. Major Cousens in-
tervened, saved his life.
Q. Now, did you fear like treatment if you failed
to obey Japanese army orders and continue on the
Zero Hour program?
A. Yes, because it was directly told to me by Mr.
Huga/'
Pag-e 91.
Hayakawa, R. 395-6.
"A. I w^asn 't aware of fear of the Kempeitai until
toward the end of 1943 and the rest of the time, and
it was a constant dread from the Summer of 1944, in
that you didn't dare to talk to anyone, whether they
were your friends or not, of personal opinions or
viewpoints. I remember one detail; the Prisoners of
War asked me once what my pleasures were — what I
did for (12) amusement — and I remember saying
that flower arrangement was the only source of
pleasure and recreation for me. That remark was con-
sidered unpatriotic by the Kempeitais and Mrs. Oki
(Mieko Furuya), whom I considered one, of my closest
friends at the time, warned me that the Kempeitai
might call me in and reprimand me for telling the
Prisoners of War that. And for talking or being seen
with the Prisoners of War also. She said that the
Kempeitai had told her to tell me. It scared me to the
extent where I no longer went down to the studio to
listen to their program, except only on the occasions
when 1 was called in to participate in the Prisoners of
War program. It was impossible to discuss interviews
by the Kempeitai with anyone, because Avhen T was
detained by the Kempeitai, before they released me,
14
I had to sign a statement which they wrote because
I could not write Japanese, which they read to me
and explained to me, which meant that I was not to
tell anyone, not even my mother and father, that I
was questioned and detained by the Kempeitai. If I
told anyone about my detention, the Kempeitai will
not be held responsible for anything that might hap-
pen to me. I had to sign that and put my thumb print
on it. Of course, they told me to sign the statement,
telling me incidents of people being questioned and de-
tained and not coming out of the Kempeitai Head-
quarters alive. ^^
Page 97.
Exhibit W for Identification (in part).
^^Regulations for Prisoners
1. Prisoners disobeying the following orders will be
punished with immediate death.
(a) Those disobeying orders and instructions.
(b) Those showing a motion of antagonism and
raising a sign of opposition.
(c) Those disordering the regulations by indi-
vidualism, egoism, thinking only about yourself, rush-
ing for your own goods.
(d) Those walking without permission.
(e) Those walking and moving without order.
(f) Those carrying unnecessary baggage in em-
barking.
(g) Those resisting.
(h) Those touching the boat's materials, wires,
electric lights, tools, switches, etc.
(i) Those climbing ladder without order.
•
15
(j) Those showing action of running away from
the room or boat.
(k) Those trying to take more meal than given to
them.
(1) Those using more than two blankets.
2. Since the boat is not well equipped (sic) and in-
side being narrow, food being scarce and poor, you'll
feel uncomfortable during the short time on the boat.
Those losing patience and disordering the regulations
will be heavily punished for the reason of not being
able to escort.
• • • • • • •
4. Meal will be given twice a day . . . Those moving
from their places reaching for your plate without
order will be heavily punished. Same orders will be
applied in handling plates after meal.
6. Navy of the Great Japanese Empire will not try
to punish you all with death. Those obeying all the
rules and regulations, and believing the action and
purpose of the Japanese Navy, cooperating with
Japan in constructing the 'New order of the Great
Asia' which lead to the world's peace will be well
treated.
The End '\
Page 105.
Foster's Crown Cases (1776), pages 216-17.
^^Sect. 8. The joining with rebels in an act of re-
bellion, or with enemies in acts of hostility, will make
a man a traitor ; in the one case within the clause of
levying war, in the other within that of adhering to
the King's enemies. But if this be done for fear of
death, and while the party is under actual force, and
he take the first opportunity that ofFeroth to make
16
his escape; this fear and compulsion will excuse him.
It is however incumbent on the party who maketh
fear and compulsion his defence, to shew, to the
satisfaction of the court and jury, that the compul-
sion continued during all the time he staid with the
rebels or enemies.
I will not say, that he is obliged to account for
every day, week, or month. That perhaps would be
impossible. And therefore if an original force be
proved, and the prisoner can shew, that he in earnest
attempted to escape and was prevented; or that he
did get off and was forced back, or that he was nar-
rowly watched, and all passes guarded ; or from other
circumstances, which it is impossible to state with
precision, but which, when proved, ought to weigh
with a jury, that an attempt to escape would have
been attended with great difficulty and danger; so
that upon the whole he may be presumed to have con-
tinued among them against his will, though not con-
stantly under an actual force or fear of immediate
death, — these circumstances and others of the like
tendency, proved to the satisfaction of the court and
jury, will be sufficient to excuse him.'' (Italics in
original.)
Page 106.
East's Pleas of the Crown (1806), pages 70-71.
^^But if the joining with rebels be from fear of
present death, and while the party is under actual
force, such fear and compulsion will excuse him. It
is incumbent, however, on the party setting up this
defence to give satisfactory proof that the compul-
sion continued during all the time that he staid with
the rebels. It may perhaps be impossible to account
for every day, week, or month; and therefore it may
17
he sufficient to excuse him if he can prove an original
force upon him, that he in earnest attempted to escape
and was prevented, or that he was so narrowly
watched, or the passes so guarded, that an attempt to
escape or to refuse his assistance would have been
attended with great difficnlty and danger; and, if the
circumstance will admit of it, that he quitted the
service as soon as he could: so that upon the whole
he may fairly he presumed to have continued amongst
them against his tvill, though not constantly under an
actual force or fear of immediate death. This is
agreeable to the rule in Oldcastle's case: where those
who were charged as his accomplices in rebellion were
acquitted by the judgment of the court, because the
acts were found to be done pro timore mortis, et quod
recesserunt quam cito potuerunt/' * ♦ *
^'* * * In all like cases of the Scotch rebels, the
matter of fact, whether force or no force, and how
long that force continued, with every circumstance
tending to show the practicability or impracticability
of an escape, was left to the jury on the ivhole evi-
dence.
(p. 72) ''* * * Yet paying contribution to rebels to
prevent the plunder of the country, or making sub-
mission to them when resistance would he dangerous
and in all prohahility unavailing, is excusable; for in
times of open hostilities the jus belli is the only
practicable law. But if it appear that the party
wanted the will rather than the power to deny his
assistance, and there appear any marks of conscious-
ness that he might if he pleased have withheld it, he
is inexcusable if upon a pretence of fear or doubt of
compulsion he gives such assistance/'
18
Page 108.
U. S. V. Greiner, 26 Fed. Cas. 36, 40.
^*His duty of allegiance to the United States con-
tinued to be thus paramount so long at least as their
government was able to maintain its peace through its
own courts of justice in Georgia, and thus extend,
there, to the citizen that protection which affords him
security in his allegiance, and in the foundation of
his duty of allegiance. Though the subsequent oc-
currences which have closed these courts in Georgia
may have rendered the continuance of such protection
within her limits impossible at this time, we know that
a different state of things existed at the time of the
hostile occupation of the fort. The revolutionary
secession of the state, though threatened, had not yet
been consummated. This party's duty of allegiance
to the United States therefore, could not then be af-
fected by any conflicting enforced allegiance to the
state.'*
Page 127.
Van Beeck v. Sabine Towing Co., 300 U.S. 342, 344.
*^The [statute] * * * ushered in a new policy and
broke with old traditions. Its meaning is likely to be
misread if shreds of the discarded policy are treated
as still clinging to it and narrowing its scope.
(pp. 350-51) ''[These] statutes have their roots in
dissatisfaction with the archaisms of the law which
have been traced to their origin in the course of this
opinion. It would be a misfortune if a narrow or
grudging process of construction were to exemplify
and perpetuate the very evils to be remedied. There
are times when uncertain words are to be wrought
into consistency and unity with a legislative policy
which is itself a source of law, a new generative im-
19
pulse transmitted to the legal system. 'The Legis-
lature has the power to decide what the policy of the
law shall be, and if it has intimated its will, however
indirectly, that Avill should be recognized and obeyed'.
Its intimation is clear enough in the statutes now
before us that their effects shall not be stifled, with-
out the warrant of clear necessity, by the perpetua-
tion of a policy which now has had its day.''
Page 156.
Defendant, XL VIII-5321 :24.5322 :8.
''Mr. DeWolfe. Q. Did you tell your husband
before you left Japan that you were a Portuguese
national I
A. I can't remember.
^ Q. You heard your husband testify that you told
P him in Japan and here that you were a Portuguese
national, didn't youf
^ A. Yes, according to the Portuguese consul, yes.
Q. You heard your husband testify that you told
him in Japan and in the United States here — that you
told him in both places that you were a Portuguese
national? You heard him so tesifyf
A. I do not recall."
Again at XLVITI-5338 :2-9 :
"Q. Mr. Richard Eisenhart, that young man who
was here, did not ask you to autograph it as Tokyo
Rose, did he?
A. Oh, he did not get it from me, no.
Q. You heard him testify that he was present
when you signed itf
A. He was not present when I signed it, no.
Q. / said yon heard him testify that he was, didn't
youf
A. I do not recall his testimony."
20
Page 158.
Defendant, XLVIII.5368 :12-5369 :15.
**Q. Didn't you tell him or say in his presence at
your home in Tokyo on or about 3 September 1945
that you took the job at Radio Tokyo because it paid
more than your typist job?
A. No, because it did not.
Q. Did you hear him testify that you said that?
A. I have forgotten. I do not know.
Mr. Collins. Just a minute, Your Honor. It is
purely argumentative.
The Court. The question has been asked and an-
swered.
Mr. Collins. And it is improper cross-examination
of this witness.
Mr. DeWolfe. Q. You say you have forgotten
what he testified to?
A. I can't say for sure
Mr. Collins. Just a moment, Mrs. D 'Aquino. We
object to that on the ground it is improper cross-
examination.
The Court. The objection may be overruled.
Read the question, Mr. Reporter.
(Question read.)
Mr. DeWolfe. Q. Do you remember Sgt. Keeney
testifying that you told him that you took the joh on
the radio because it paid more than your typist joh?
Mr. Collins. 1 object to that on the ground it is
improper cross-examination of this witness.
Mr. DeWolfe. Q. Do you remember him so tes-
tifying?
Mr. Collins. Just a moment, Mrs. D 'Aquino. I
object to it on the ground it is improper cross-exami-
nation.
The Court. The objection may be overruled. You
may answer."
I
21
Page 158.
Defendant, XLIX-5395:25-5396:9.
*^Q. And he didn't compliment you on your broad-
casting work!
A. No.
Q. Bid you heard Reyes testify that he did make
those statements in your presence?
Mr. Collins. I object to that, if your Honor please,
on the ground that it is argumentative, it is improper
cross-examination.
The Court. The objection will be overruled, she
may state whether or not she heard him say that.
A. I believe he did say something like that.'^
Page 158.
Defendant. XLIX-5397: 1-5398:2.
I
»
i
' ' Q. Didn 't you broadcast in the fall of 1944 words
in substance and effect as follows, ^O.K., sarge, leave
out the beer. Let's have some cold water. Cold water
sure tastes good.'?
A. No, I never said anything like that.
Q. You heard Reyes testify that you did, didn't
youf
Mr. Collins. I object to that, if your Honor please,
on the ground that that is improper cross-examina-
tion, and on the further ground that it is an improper
attempt to impeach this witness through the testi-
mony of another witness given in this court.
The Court. The objection will be overnded, she
may answer.
Mr. DeWolfe. Q. You heard Reyes testify that
you did broadcast that, didn't you, Mrs. D'Aquino?
A. I don't know whether I recall Reyes saying
that. I remember Mr. Mitsushio saying something
like that.
22
Q. Don't you recall Reyes testifying that you
broadcast those words?
Mr. Collins. I object to that on the ground, if
your Honor please, the question has been asked and
answered.
The Court. The objection will be overruled, the
witness may answer.
A. As I stated, I remember Mr. Mitsushio saying
it, but I can't recall
Q. The question was, can you recall Mr. Reyes
saying that, not Mr. Mitsushio?
A. I can't recall Mr. Reyes saying that.''
Page 158.
Cross-Examination of defendant on testimony of other witnesses,
XLVIII-5369:22-5370 (all) ; 5381:1-25; 5371:1-5372:1.
Q. Didn't you tell Sgt. Keeney or say in his presence
on 3 September 1945 at your home in Tokyo that you took
the broadcasting job because you may find a future in
radio work, or words to that effect?
Mr. Collins. I object to that on the ground it is im-
proper cross examination. It is a matter that was not
even touched upon on direct examination.
Mr. DeWolfe. Intent — treasonous intent.
The Court. The objection may be overruled. You may
answer.
Mr. Collins. I object to that on the further ground it is
an improper attempt to impeach the witness.
The Court. The objection may be overruled.
A. What was the question again!
(Question read.)
23
Mr. Collins. I wish to take exception to counsel for
the prosecution's remark as to the so-called treasonous
intent and ask that the jury, and I assign it as misconduct
on the part of the counsel for the prosecution and ask that
the jury be instructed to disregard counsel's statement.
The Court. The objection will be overruled. Let the
record stand, and answer the question, please.
A. No, I don't remember saying anything like that to
Mr. Keeney.
Mr. DeWolfe. Q. Did you hear Sergeant Keeney tes-
tify that you
Mr. Collins. Object to it on the ground
I Mr. DeWolfe. Wait until I finish my question, Mr.
Collins.
Q. Did you hear Sergeant Keeney testify, Mrs.
D 'Aquino, that you told him that in substance on that
occasion ?
Mr. Collins. Object to it on the ground that it is im-
proper cross examination and it is improper impeachment
of the witness on the stand from another person's testi-
mony.
The Court. A conversation had at a time and place
certain, a statement made in the presence of the defend-
ant!
Mr. Collins. This is made in open court, if your Honor
. please; that it what this statement is.
XLVIII, 5371:1-5372:1.
The Court. Read the question, Mr. Reporter.
(Question read.)
The Court. You may answer; the objection will be
overruled.
24
The Witness. What was the question? Isn't there a
question — the original question?
Mr. DeWolfe. Q. The reporter just read it to you,
Mrs. D 'Aquino. Do you want it read again?
Mr. Collins. We object to that on the ground, if your
Honor please — assign that as misconduct on the part of
counsel too, to have made such a statement. The witness
is entitled to have the question read back.
Mr. DeWolfe. I just asked her if she wanted it read
back, your Honor.
The Court. Kead the question, Mr. Reporter.
(Question read.)
The Witness. Testify to whatf
Mr. DeWolfe. Q. That you told him you took the
job because you might find a future in radio?
Mr. Collins. We object to that on the ground, if your
Honor please, it is improper cross examination.
The Court. Objection overruled. You may answer.
A. Whether I heard him testify here?
Mr. DeWolfe. Q. Yes, to that point, that you told him
that.
A. It may have been I heard it. I don 't know the exact
words he used, though.
XLIX.5403:20-5404:9.
Q. And you were present when Kenneth Ishii broadcast
news about American battle losses?
A. I can't say that, no.
Q. You heard Ken Ishii testify that you were, didnH
you, Mrs. D 'Aquino?
Mr. Collins. I object to that on the ground it assumes
something not in evidence, and on the further ground it is
25
irnprox)er cross examination, and on the further ground it
is an attempt to impeach this witness with the testimony
given by another witness.
The Court. The objection is overruled.
Mr. De Wolfe. Q. Yon heard Kenneth Ishii testify you
were present when he broadcast about American battle
losses, isnH that correct?
A. r think I heard him testify that he broadcast news.
XLIX.5405:8-5406:14.
Mr. DeWolfe. Q. Before deductions you got 180 yen
a month after the summer of 1944, didn't you I
A. No, T do not think it was ever that much.
Q. Yon heard Mr. Yamazaki testify that that is what
you got, didnH you?
Mr. Collins. I object to that on the ground that Mr.
Yamazaki did not so testify and the reporter's transcript
is the best evidence of that, and it shows deductions of
20 to 25 per cent were to be made.
The Court. She may state whether or not she heard
him make that statement. The jury heard the testimony.
It is a matter for the jury to determine what the testi-
mony is. Proceed.
Mr. DeWolfe. Q. You heard Mr. Yamazaki testify you
I got 180 yen a month before deductions after the summer
I of 1944?
A. I think that is what he testified, yes.
Q. And you do not know whether that is accurate or
I not, do you?
A. You see, Mr. DeWolfe, T was
Q. Answer the question.
Mr. Collins. Just a moment.
26
Mr. DeWolfe. Q. Anstver the question. You do not
know ivhether that is accurate or not, do you?
Mr. Collins. Mrs. D 'Aquino, just a moment. You are
not taking any instructions from Mr. DeWolfe. We ask
for a Court ruling on that. The witness had not answered
the prior question before counsel interrupted.
The Court. Read the question.
(Question read.)
The Court. You may answer.
The Witness. You mean the testimony?
Mr. DeWolfe. Q. Yes. Mr. Yamazaki's testimony that
you got 180 yen a month before deductions.
A. / do not know whether that ts accurate or not, no.
Here we have a repetition of the misstatement of Yama-
zaki's testimony, and a demand that the witness say
whether the misstated testimony is ''accurate'^!
More of the same immediately follows:
XLIX-5406:18.5407:5.
Q. You complained to him that your salary was not
sufficient, didn't you?
A. I never complained to Mr. Yamazaki, no.
Q. You heard him testify that you did, didnH youf
Mr. Collins. I object to that on the ground that it is
improper cross-examination and on the further ground it
is an improper attempt to impeach this witness by the
testimony given by another witness of this trial.
The Court. The objection will be overruled.
Mr. DeWolfe. Q. You heard Mr. Yamazaki say you
did ask him for more money, didnH you?
A. I am not positive, but T think he did state same-
thing like that.
27
XLIX-5409: 15-5410:3.
Q. You told Mr. Reyes that you were worried about
what was ^oing to happen to you in the United States
after the war was over, didn't you?
A. I do not remember any such conversations I had
with Mr. Reyes.
Q. Do you recall Reyes testifying that you said that?
Mr. Collins. I object to that on the ground it is im-
proper cross-examination. Furthermore, it is an improper
attempt to impeach the witness on the stand with testi-
mony in this case, if it was given in this court, by an-
other witness.
The Court. The objection is overruled,
Mr. DeWolfe. Q. Do you recall hearing Reyes testify
to that?
A. T believe he did say something like that.
Page 161.
At XLIX-5447:23-5448:19 we have:
Mr. DeWolfe. Q. Did you broadcast on Armistice
Day, November 11th, 1944, from Radio Tokyo, that it was
time to forget the war and remember the date! Or words
in substance to that effect!
» Mr. Collins. Just a moment, please. I object to that
I' as improper cross-examination of the witness on matters
I not developed on direct examination.
! The Court. The objection is overruled. You may an-
swer.
A. 1 have never said those words.
Mr. DeWolfe. Q. You heard witness Reyes, your wit-
ness, say that you did, didnH you?
28
Mr. Collins. Object to that on the ground that it is
assuming something that is not in evidence and it is a
distortion of the testimony of the witness.
Mr. DeWolfe. Volume 33, page 3804, he so testified
under oath, your witness, Mr, Collins, that you put on the
stand, for the truth of whose testimony you vouch for,
not the United States.
The Court. Read the question, Mr. Reporter.
(Question read.)
Mr. Collins. I object to that on the ground that that
is improper cross-examination of the witness on a matter
not developed upon direct examination, on the further
ground that it is an improper attempt to impeach this
witness by the testimony of another witness at this trial.
The Court. The objection will be overruled, you may
answer the question.
A, Yes, I think he did say something like that.
At XLIX-5450-52 there is more of the same. XLIV-5450:7-5451:9.
Q. Never said anything like that. Did you broadcast
on 8 Dcember 1944, three years after Pearl Harbor, in
substance as follows: ^^The war is three years old today
and where it stops nobody knows. But why worry, bone-
heads, when I am here! So relax and listen to the pretty
music, like good boys." Did you broadcast words to that
effect, in substance, on or about that day, December 8,
1944?
Mr. Collins. Object to that on the ground
Mr. DeWolfe Q. (continuing). Or any other date?
29
Mr. Collins. I object to that on the ground that it is
improper cross-examination of the witness upon matters
not even dwelt upon on the direct examination.
The Court. The objection will be overruled, you may
answer.
A. No, I do not recall ever broadcasting anything of
that nature.
Mr. De Wolfe. Q. You heard your witness^ Reyes, tes-
tify that you did broadcast that, Mrs. D' Aquino, didn't
you?
Mr. Collins. I object to that, if your Honor please, on
the ground that that is argumentative, on the further
ground it is improper cross-examination of this witness
upon matters not developed upon direct examination, on
the further ground that it is an improper attempt to im-
peach this witness by the testimony of another witness
given at this trial.
The Court. Objection overruled, the witness may an-
swer.
Mr. DeWolfe. Q. You heard Reyes
The Court. Just a moment, let the witness answer.
Mr. DeWolfe. All right, excuse me. I thought she
wanted it reframed.
A. I believe he said something like that, yes.
XLIX-5451:19-5452:9.
Q. And you told Merritt Page that you took the job of
, broadcasting because it would be good experience, would
entertain the troops and would supplement your income;
in substance you told hiin tliat, didn't youf
A. I don 't recall exactly what T told Mr. Page.
30
Q. Did you hear him testify here that you did tell hiyn
those words, in substance, exactly like I have repeated
them here in court in the last question?
Mr. Collins. I object to that on the ground that that
is an improper attempt to impeach the witness by testi-
mony of another ^\dtness given at this trial, and on the
further ground it is improper cross-examination.
The Court. The objection will be overruled, the wit-
ness may answer.
A. I can H recall what each and every witness has testi-
fied to, no, I can't.
And at XLIX.5455:6-9, 19-5456:9.
Q. And you made the statement to Fenimore that you
did not know, Mr. William Fenimore, that you did not
know whether Ince or Cousens were broadcasting volun-
tarily or were broadcasting under duress, did you*?
Q. You heard Serjeant Fenimore testify here under
oath that you made that statement to him, didnH youf
Mr. Collins. Object to that on the ground that that is
argumentative, on the further ground it is improper cross-
examination of the witness upon matters not developed
upon her direct examination, on the further ground that
it is an improper attempt to impeach this witness on the
testimony given by another witness at this trial.
The Court. Objection will be overruled, the witness
may answer.
A. What was that question?
(Question read.)
A. I think I did, but I said that I had never had an
interview with Sergeant Fenimore. The first time I saw
I
31
him was after the interview was over, and he finger-
printed me at the C.I.C. headquarters. That was the only
time I saw Fenimore.
XLIX-5460:23-5463:9; 5463:18-5464:18; 5465:9-5467:23.
Q. He was a friend, wasn't he?
A. Well, first he wasn't a friend. Later he became a
friend.
Q. Did you hear his deposition read when he said that
during the war he was a friend of yours and Mr. Philip
D 'Aquino's?
Mr. Collins. Object to that on the ground, if Your
Honor please, that that is improper cross-examination;
on the further ground it is an improper attempt to im-
peach the witness by testimony of another witness given
at this trial.
The Court. Read the question.
(Record read.)
Mr. Collins. And I think this is assuming a fact not
in evidence. T don't recall any such testimony being given
in the de])osition of Katsuo Okada to that effect.
The Court. Let the witness answer. Objection over-
ruled.
Q. Did you?
A. I can't remember all the depositions and all the
witnesses' statements.
Mr. DeWolfe. Q. Well, do you remember it, or don't
you, Mrs. D 'Aquino?
Mr. Collins. Object to that on the ground it is im-
proper cross-examination, on the ground, further ground,
it is an improper attempt to impeach this witness from
32
the testimony given in a deposition by another witness at
this trial.
The Court. Objection overruled; she may answer.
A. Well, I don't know. He may have said it, yes.
Q. I see.
A. I can't
The Court. Q. Did you hear him say it?
A. It was a deposition, Your Honor.
Mr. Collins. It was the deposition read into evidence
here, Your Honor.
The Witness. I can 't remember all the depositions that
were present in this
The Court. Q. He didn't ask you whether you could
remember. Do you recall hearing him so testify?
A. There was a deposition, Your Honor.
Q. Yes, did you hear the deposition read?
A. Yes, I read it, but
Q. Do you recall it?
A. I can't recall it, no, word for word.
The Court. Very well. Proceed. If she can't recall it,
she can't recall it.
Mr. DeWolfe. Q. Now, Mrs. D 'Aquino, while you
were working on the Zero Hour, in the presence of Nor-
man Reyes, your superiors at Eadio Tokyo made direct
reference to the fact that the purpose of the Zero Hour
was to create homesickness in order to have a demoraliz-
ing effect on American troops?
A. Never.
Q. Did you hear wdtness Reyes testify that in your
presence many such statements were made?
Mr. Collins. Object to that on the ground it is im-
proper cross-examination of matters not developed with
I 33
this witness on direct examination; on the further ground
it is an improper attempt to impeach this witness by the
testimony of another witness given at this trial.
The Court. Was this witness present?
Mr. DeWolfe. Yes, sir.
The Court. The objection will be overruled. Let the
witness answer.
A. There again, 1 can't remember all of what Norman
Reyes testified to. He was on the stand three or four
days. I cannot recall it.
I
XLIX.5463 .18-5464 :18.
Q. All right. And while you were on the Zero Hour
program, Tnce did not attempt to insert any hidden mean-
ings or double talk in your scripts, did he?
A. Why, one was read in evidence.
The Court. Q. What was read in evidence?
A. One of the scripts.
Mr. DeWolfe. Q. Well, did Ince on the Zero Hour
program attempt to insert any hidden meanings in your
scripts ?
Mr. Collins. Objected to on the ground it is calling
for the opinion and conclusion of the witness; on the fur-
ther ground it is improper cross-examination.
The Court. If the witness knows, she may answer. The
objection will be overruled.
A. I believe it was one of the band music.
Q. I see. Did you hear Ince testify that he did not
attempt to insert any double talk or hidden meanings in
any of your scripts?
34
Mr. Collins. Object to that on the ground it is im-
proper cross-examination of this Avitness on matters not
developed on direct examination; and on the further
ground that it is an improper attempt to impeach this
witness hj testimony given by another witness at this
trial.
The Court. The objection will be overruled; you may
answer.
A. May I have that question again, please!
(Previous question read.)
A. I don't remember specifically that statement, no.
• **•««*
XLIX-5465:9-5467:23.
Q. Did you tell William Fennimore in the Grand Hotel
September 1945 that in announcing the various records
on the Zero Hour program, pieces like Stardust, you
would say to the American troops, '*Do you remember
when you were home dancing with your wife or with your
girl friend to this tune? I wonder what she is doing
now. ' '
A. As I stated before, I have never had an interview
with Sgt. Fennimore.
Q. Did you hear William Fennimore testify that you
told him that, Mrs. D 'Aquino?
Mr. Collins. I object to that on the ground it is im-
proper cross-examination of this wdtness upon matters not
developed upon direct examination, and on the further
ground that it is an attempt to impeach this witness from
the testimony of another witness given at this trial.
The Court. The objection wdll be overruled. The wit-
ness may answer.
35
A. Yes, I heard hiin testify in this trial.
Q. Did you hear him testify that you told him those
words.
A. I believe I did.
Mr. Collins. Just a moment. I am going to ask that
the witness' answer be stricken from the record so that
an objection may be interposed.
The Court. It may be stricken.
Mr. Collins. I object to that on the ground that it is
improper cross-examination of the witness upon matters
not developed upon direct examination, and on the fur-
ther ground that it is an attempt to impeach the witness
by the testimony given by another person who appeared
as a witness at this trial.
The Court. The objection will be overruled. Let the
question and answer stand.
Mr. DeWolfe. T understand the answer that Your
Honor struck now stands?
The Court. You may repeat the question and get an
answer if you wish.
Mr. DeWolfe. All right. Well, it is my understanding
that it stands.
The Court. What is it!
Mr. DeWolfe. It is my understanding that you struck
it first and let it stand, now% and I wonH repeat it.
The Court. Well, T did that in the interest of time. Tf
there is any objection to it, or if you are in doubt about
it, you might repeat the (|uestion and get a record on it.
Mr. DeWolfe. Q. Did you hear Sgt. Fennimore, Wil-
liam Fennimore, testify here that you told him that in
announcing various recordings like Stardust, you would
36
say to the American troops, *'Do you remember when
you were home dancing with your wives or with your girl
friends to this tune? I wonder what she is doing now.''
Did you hear him so testify?
Mr. Collins. Object to that on the ground it is im-
proper cross-examination.
The Court. Haven't you already objected to that just
a moment ago!
Mr. Collins. Yes, I did, but I understand
The Court. Well, you have got a record on it.
Mr. Collins. It was stricken out.
The Court. The answer was stricken out only; the
question wasn't stricken out.
Mr. Collins. All right.
The Court. You may answer the question.
Mr. DeWolfe. Q. Did you hear him so testify, Mrs.
D 'Aquino?
A. I believe I did.
XLIX-5473:20-5474:12; 5475:1-20.
Q. And they gave you some kind of a bonus or pres-
ent over there, an extra month's salary every New Year's
Day, is that correct?
A. I think it was Christmas.
Q. That is a Japanese custom, isn't it?
A. Oh, no, no. That was the minister's custom, yes.
Q. Didn't you hear the deposition of Mr. Tillitse read
when he said he gave you a bonus at New Year's and it
was a Japanese custom so to do?
A. I do not know whether it was Christmas or New
Year's, but I think it was Christmas.
Q. He said it was a Japanese custom, didn't he?
37
Mr. Collins. I submit, if Your Honor please, the depo-
sition would be the best evidence, and I recall no such
statement being included in that deposition.
Mr. DeWolfe. Page 3 of his deposition, I think.
The Court. If these is any question about it, you might
look at the deposition.
Q. Minister Tillitse from Denmark in your deposition,
as your wdtness, said, ''The salary was in yen 150 from
January 1944 to June 1944, and then yen 160 from July
1944 to May 1945.
''In January she received one month's extra salary at
New Year's time, as is the custom in Japan;'' That is
correct, isn't it?
A. I must have been under a mis
Mr. Collins. Just a moment. I object to that on the
ground it is improper cross-examination of the witness;
furthermore, it is an improper attempt to impeach the
testimony of the witness by the testimony of another wit-
ness.
The Court. The objection is overruled.
Mr. Collins. I direct Your Honor's attention to the
fact that it is not specified in the testimony that it was
the Japanese custom.
The Court. In any event, the ultimate fact is she got
a month's salary. Whether it was at Christmas or New
Year's makes no material difference. It is the ultimate
fact. Let us proceed.
Mr. DeWolfe. All right, sir.
38
Page 162.
Cross-Examination of defendant on testimony of other witnesses,
XLIX-5477:l-25.
Q. You told your husband that you liked your work
at Radio Tokyo better than you liked your work at Domei,
didn't you?
A. I do not know whether I did or I did not.
Q. You heard your husband that you told him that,
didn^t you?
Mr. Collins. I object to it on the ground it is im-
proper cross examination on matters not developed by
direct examination; and on the further ground it is an
improper attempt to impeach the testimony given by
another witness.
The Court. The objection is overruled.
(Question read.)
The Witness. May I have the previous question,
please?
(Previous question read.)
A. I did not like Domei. I may have said that.
Mr. DeWolfe. Q. Did you hear your husband testify
that you told him you liked your job broadcasting on the
radio better than you did your job at Domeif
Mr. Collins. I object to that on the ground it is not
proper cross examination, concerning matters not de-
veloped on the direct examination, and on the further
ground it is an attempt to impeach the witness by testi-
mony of another witness, and on the further ground it
relates to a matter of privileged communication.
The Court. The objection is overruled. You may
answer.
39
The Witness. I can't say for sure what I heard here,
I have heard so much.
Pag-e 163.
Ince, XXXI-3533:2-ll.
''Q. After Miss Toguri began participating in the
Zero Hour, did you while you were on that program
attempt to insert any hidden meanings or double talk
in the scripts?
A. I did not, because I did not write the scripts
for her.
Q. Well, do you know whether there was any at-
tempt to insert hidden meanings or double talk into
the script?
^A. I believe that Major Cousens did.
Q. You wrote some script, didn't you?
A. I rehashed some of his on a few occasions when
& he was not able to."
Page 164.
Cross-Examination on Overt Act 8, XLIX-5439:17-5446:11.
Q. Did you appear in this hat dialogue that you heard
testimony about? Do you know what I am talking about!
Mr. Collins. Just a moment. We object to that, if
Your Honor please, upon the ground it is improper cross
examination of the witness upon matters that were not
touched upon on the direct examination of this witness.
The Court. The objection will be overruled. Read the
question.
(Question read.)
Mr. Collins. If Your Honor please, I wish now to
assign this as constituting misconduct on tlio ])arl of
40
counsel for the prosecution knowingly to cross examine
this witness or attempt to cross examine this witness
on matters that were not developed on her direct exami-
nation.
The Court. The Court is responsible for the rulings
here. No one else is. You have a record. Now let us
proceed in the usual way. Reframe your question and
let us proceed.
Mr. DeWolfe. Q. Did you participate in a dialogue
with George Mitsushio about a hat?
Mr. Collins. Since the question has been reframed, I
wish now to interpose my objection again, if Your Honor
please.
The Court. The objection will be overruled.
Mr. Collins. I object to it on the ground it is improper
cross examination of the witness on matters not de-
veloped upon her direct examination.
The Court. The objection is overruled.
Mr. DeWolfe. Overt Act 8, sir.
The Witness. I can't recall that dialogue.
Mr. DeWolfe. Q. You can't. Didn't you broadcast
in the latter part of 1945 with George Mitsushio in an
entertainment dialogue ?
Mr. Collins. I object to that on the ground it is im-
proper cross examination of the witness upon a matter
that was not even touched upon on the direct examina-
tion of this witness.
The Court. The objection will be overruled.
A. I can't recall any dialogue.
Mr. DeWolfe. Q. Didn't you appear in a broadcast
with Mr. Mitsushio in the spring of 1945?
41
Mr. Collins. I object to that on the ground it is im-
proper cross examination of the witness on matters not
even developed upon the direct examination of this
witness.
The Court. The objection is overruled. What was that
again ?
(Question read.)
A. I can^t recall, no.
Mr. DeWolfe. Q. Would you say that you did not?
Mr. Collins. I object to that on the ground it is argu-
mentative, and on the further ground it is improper cross
examination of the witness on a matter not developed
upon direct examination.
The Court. The objection is overruled.
^ Mr. DeWolfe. Q. Would you say you did not, Mrs.
D 'Aquino?
A. In the spring of 1945!
K Q. Or any time, Mrs. D 'Aquino.
A. I can't recall of any dialogue.
Q. Did you make any statement in any of your broad-
casts about a hat that you can recall, around 20 June
19451
Mr. Collins. I object to that on the ground it is im-
proper cross examination of the witness upon a matter
that was not even touched upon on direct examination.
The Court. The objection is overruled. You may
answer.
A. T am afraid I can't recall anything about a hat.
Mr. DeWolfe. Q. Is this your broadcast on 20 June
1945, Mrs. D 'Aquino, or a part of your words:
42
^' Thank you, Ann. Will be expecting you tomorrow
night. Why, what is the hurry f
' ^ Sorry, boss. I am in a hurry. I have got a heavy date
waiting for me outside of the studio.
"Stepping out, are you! I should think you would wear
a hat, at least, when you go out.
'^I do have. It is on this side, see?
"Good-night, fellows. '^
I will ask you to look at those words in Government's
Exhibit 63 for identification and see if that is not par-
tially at least your language.
Mr. Collins. I object to that on the ground it is im-
proper cross examination of the witness on a matter not
even touched upon or developed in the direct examination.
The Court. The objection is overruled.
A. I can't recall this.
Mr. DeWolfe. Q. Will you say that you did not make
those statements, Mrs. D 'Aquino I
Mr. Collins. I object to that on the ground it is argu-
mentative, and on the further ground it is improper cross
examination of the witness on a matter not even developed
on her direct examination.
The Court. The objection is overruled. You may
answer.
A. I am sorry. I can't recognize.
Mr. DeWolfe. Q. Will you say you did not make that
statement over the air?
Mr. Collins. I object to that on the ground it is im-
proper cross examination of the witness on a matter not
touched upon on her direct examination.
The Court. The objection is overruled. You may
answer.
43
A. I can't say positively because I can't recognize it.
Mr. DeWolfe. Q. Will you say you did not make
that statement over the airf
Mr. Collins. I object to that, if Your Honor please,
on the ground it is improper cross examination on mat-
ters not developed in the direct examination.
The Court. The objection is overruled. You may
answer.
A. I am afraid I can't say I did, because I don't
recognize it.
Mr. DeWolfe. Q. Can you say that you did not?
Mr. Collins. I object to that upon the ground it is im-
proper cross examination of the witness on matters not
developed on the direct examination, and furthermore, it
is purely argumentative.
The Court. The objection is overruled. She may
answer.
A. Since T can't recognize it, I can't say anything
about it.
Mr. DeWolfe. Q. Can you say that you did not voice
these words:
'^ Sorry, boys, I am in a hurry. I've got a heavy date
waiting for me outside the studio."
And another voice on the radio:
^* Stepping out, are you? I should think you would
wear a hat, at least when you go out."
And you said, 'T do have. Tt is on this side, see? (Jood-
night, fellows."
And just preceding that quotation somebody said:
"Thank you, Ann. We'll be expecting you tomorrow
night. Why, what is the hurry?"
44
Those words were all spoken in your presence, weren't
they?
Mr. Collins. I object to that on the ground it is argu-
mentative; on the further ground it is improper cross
examination of the witness on matters not developed on
the direct examination; and on the further ground, it
has been asked and answered; and I further assign it as
misconduct on the part of counsel for the prosecution to
have read such a statement or propounded it in the form
of a question to this witness.
The Court. The objection is overruled. She may
answer.
The Witness. What was the question!
The Court. Q. Do you recall making those state-
ments I
A. No, I do not.
The Court. Let us conclude.
Mr. DeWolfe. Q. On or about 20 June 1945 over
Radio Tokyo?
Mr. Collins. I object to that, if Your Honor please,
on the further ground it is improper cross examination
of a witness on a matter not developed on direct exami-
nation.
The Court. Overruled.
Mr. DeWolfe. Q. Would you say you did not make
those statements, Mrs. D 'Aquino?
Mr. Collins. I object to it on the ground it is not
proper cross examination of the witness, but on a matter
not developed on direct examination; furthermore, it is
purely argumentative.
The Court. The objection is overruled. You may
answer.
45
A. I can't recall, no.
Mr. DeWolfe. Q. Will you say tliat you did not make
the statements that I have just read in Government's
Exhibit 63 for identification!
Mr. Collins. T object to that on the ground the ques-
tion is purely argumentative and improper cross exami-
nation on a matter not developed on the direct exami-
nation.
The Court. The objection is overruled.
The Witness. I can't recall any of that.
Mr. DeWolfe. Q. Would you say that you did not
make this statement that I just read?
Mr. Collins. I object to that on the ground it is purely
argumentative and on the further ground the question
has been asked and answered; and on the final ground
that it is improper cross examination on a matter not
developed on the direct examination.
The Court. The Court has indicated he is entitled to
an answer under the law to that question. The objection
is overruled. She may answer.
The Witness. Will you give it to me again!
The Court. Read it.
(Question read.)
Mr. DeWolfe. Q. Or any part thereof.
I A. I will say I did not make it because T do not recall
anything like it.''
Pag:e 165.
II Arg. 337:23-339:8.
'*Now the defendant says that she never broadcast
this eighth overt act. Unhesitatingly thai she has
anything to do with that incident. They don't know
46
that we have a script concerning that. We don't know
it either, that we have a script as such, which is prop-
erly identifiable in evidence, until Frances Roth, a
very nice young lady, is sent here by the Federal
Communications Commission. She arrived here re-
cently, she was put on by the government in rebuttal.
You remember that blonde young lady. And exhibit
63, which you now have in your power to consider,
the defendant denies. Now you know, as reasonable
men and women, that she decided not to admit any-
thing. She is not admitting a thing. She knows what
overt acts are. She has talked to her lawyer. She
figures if the United States can't prove one overt act
against her, she is free. And she is not going to get
up in that witness stand and admit the commission of
any overt act, even though she committed it. She is
not going to tell you the truth about it.
Now we have the script. The girl comes here and
testifies, and she is telling the truth. The defendant
won't admit it. She unequivocally denies it. And the
script is Exhibit 63, which reads as follows :
^And that was your languid music for tonight. It
was my pleasure to deliver, and here's hoping the
taking wasn't too painful. May we invite you fight-
ing G.I.s tomorrow night along about the same
time? O.K., see you then. This is Orphan Ann,
reminding you G.I.s always to be good, and, goodby
now.'
And then they play the record you heard, * Goodby
now.' And then,
* Thank you. And we will be expecting you to-
morrow night.'
^Why, what's the hurry?'
She denies this, it is on print here.
* Sorry, boss, I am in a hurry. I have got a heavy
date waiting for me outside the studio. '
I
47
'Stepping out, are you? I should think you would
wear a hat, at least, when you go out.'
'I do have, it is on this side. See? Ooodnight
fellows.* '*
Page 167.
State V. Crowder, 119 Wash. 450, 205 Pac. 850, 852.
''If the facts testified to in chief had directly or hy
inference tended to dispute or deny the charge, there
might he force in this position; but, as we view it,
the testimony referred to had no such possible effect.
* * * The purpose of cross-examination is to break
or weaken the force of the testimony given in chief,
it should be used as a shield and not as a sword, and
as the state had already, as a part of its own case,
offered evidence to prove the identical facts testified
to on direct examination by appellant, it could hardly
have desired, by its cross-examination, to accomplish
the legitimate result of breaking or weakening appel-
lant's testimony in that respect. Moreover, the testi-
mony elicited on cross-examination had no such pur-
pose or effect, hut its evident purpose, * * * was to
cause the appellant to incriminate himself.''
Page 169.
XLVII.5245: 13-25.
"Q. Well, does your sworn statement under oath
now refresh your recollection as to your Japanese
nationality and when you renounced it?
Mr. Collins. I object to that, if Your Honor please,
on the ground that is calling for the opinion and con-
clusion of the witness, that this is on a form utilized
I by the — it is on a standard form used by the American
Consular Service; and furthermore, it calls for an
absolute impossibility. No United States national can
48
be given by any act of any foreign country or by any
other person save and except the person himself, any
foreign nationality.
The Court. The objection \\dll be overruled; she
may answer. Read the question. (Question read.)"
Page 170.
Defendant, XLVII-5310 :10.5311 :10.
Q. You did not think the Japanese, Mrs. D 'Aquino,
were paying you to get up and entertain American troops,
did you!
A. That is what they were doing.
Q. That's what they were doing. You honestly, Mrs.
D 'Aquino, and sincerely thought the Japanese were pay-
ing you money to entertain American troops, is that right ?
A. No, that is not right.
Q. You didn't think that the Japanese militarists were
so gracious that they wanted you to make the American
soldiers have a happy half hour or so, did you!
A. I was working at the Radio Tokyo as a typist
Q. Did you think that!
Mr. Collins. Just a moment, Mr. DeWolfe. Let the
witness answer the question you propounded. We ask
for a court ruling on that, instead of having her inter-
rupted by counsel.
Mr. DeWolfe. I asked her what she thought about
broadcasts. Now she is going off on another point and
talking about typing at Radio Tokyo.
Mr. Collins. We assign that as misconduct on the part
of counsel for the government to make such charges.
Mr. DeWolfe. It is true. It is no charge at all.
The Court. Read the question.
49
(Question read.)
The Court. You may answer the question.
A. I do not know what the militarists — I do not know
what you mean by that statement.
Mr. Collins. I submit, if Your Honor please, that is
calling for the opinion and conclusion of the witness and
not material to the issues in this case.
The Court. The objection is overruled. The witness
may answer.
The Witness. I can't say all the programs, no.
Mr. DeWolfe. Q. You can't say that, Mrs. D 'Aquino!
A. No, because I do not think I have heard hardly
any of the programs over Radio Tokyo.
Q. You told Agent Tillman when he interviewed you
in 1946 that all the Japanese radio programs were propa-
gandisticf
A. I do not recall.
Q. If you did tell him that, the statement was true,
wasn't it!
A. If it is in the statement, yes.
Q. Are you able to say now whether it was in the
statement or not!
A. I remember having argued with Mr. Tillman about
that one phase for about three minutes.
Q. Are you able to say whether or not it is in the
statement!
A. I can't say for sure.
Mr. Collins. The statement, Mr. DeWolfe, is the best
evidence of its own contents.
Mr. DeWolfe. Q. Do you say you do not know
whether or not all Japanese programs were propa-
gandistic?
Mr. Collins. I submit it is improper impeachment of
the witness, Your Honor.
Mr. DeWolfe. Q. Do you say that!
Mr. Collins. Just a moment. I ask for a ruling on
the objection. I
The Court. Bead the question.
(Question read.)
The Court. The objection is overruled. You may
answer.
A. I guess they were.
Page 170.
XLVIII.5320:15.5321:11.
^*Q. You told your husband after he came over
here in June that you were a Portuguese national,
didn't you!
A. I don't know whether I told him, discussed
with him the citizenship problem or not.
Q. Well, you won't say that you did not tell him
after he came over here in June of this year that you
were a Portuguese national, would you!
A. I do not think the subject has ever been dis-
cussed.
Q. Would you say you did not tell him that!
Mr. Collins. I submit, if Your Honor please, that
is argumentative. The witness has answered the ques-
tion.
Mr. DeWolfe. She has not answered it.
Mr. Collins. I further object to it on the ground
that it is a privileged communication between husband
and wife.
Mr. DeWolfe. The husband has waived it. He got
on the stand and testified to the conversation. He
testified about this matter on direct and cross-ex-
51
j^ amination the other day when counsel put him on the
stand.
The Court. The objection is overruled. You may
answer. Read the question, Mr. Reporter.
(Question read.)
A. I can't distinctly recall/'
Page 172.
Defendant, XLVIII-5323 : 15-5324 :23.
*'Mr. Collins. I submit, if Your Honor please, that is
calling for the opinion and conclusion of the witness and
not material to the issues in this case.
The Court. The objection is overruled. The witness
may answer.
The Witness. I can't say all the programs, no.
I Mr. DeWolfe. Q. You can't say that, Mrs. D 'Aquino?
A. No, because I do not think 1 have heard hardly any
of the programs over Radio Tokyo.
■ Q. You told Agent Tillman when he interviewed you
in 1946 that all the Japanese radio programs were
propagandistie?
A. I do not recall.
Q. If you did tell him that, the statement was true,
wasn't it?
A. If it is in the statement, yes.
Q. Are you able to say now whether it was in the
! statement or notf
I A. I remember having argued with Mr. Tillman about
that one phase for about three minutes.
Q. Are you able to say whether or not it is in the state-
: mentf
' A. I can't sav for sure.
52
Mr. Collins. The statement, Mr. De Wolfe, is the best
evidence of its own contents.
Mr. Dewolfe. Q. Do you say you do not know
whether or no all Japanese programs were propagandistic?
Mr. Collins. I submit it is improper impeachment of
the witness, Your Honor.
Mr. DeWolfe. Q. Do you say that?
Mr. Collins. Just a moment. I ask for a ruling on
the objection.
The Court. Read the question.
(Question read.)
The Court. The objection is overruled. You may
answer.
A. I guess they were/^
Page 172.
XLIX-5392:5-21.
*^Q. No, I didn't ask you that, Mrs. D 'Aquino. I
asked you if your best judgment was that the word-
age on Exhibit 25 attributed to ^Ann' was voiced by
you, in your best judgment! Answer that yes or no.
A. According to the record, yes.
Q. According to Exhibit 25, Mrs, D^ Aquino f Yes
or no,
A. According to the Exhibit 25?
Q. Yes.
Mr. Collins. I object to that on the ground that
is purely argumentative.
The Court. She ma}^ answer, objection overruled.
A. You mean 25 used with the records?
Q. Yes.
A. Yes.
i
I
53
Q. Those are, to your best judgment, your words,
the words in 25 attributed to *Ann', they were voiced
by you? Yes or no.
A. Yes, those voiced on the record, yes."
Pag:e 172.
XLIX-5476:13-22.
^^Mr. DeWolfe. Q. Sgt. Okata knew you were
buying food on the black market, didn't he!
A. Yes.
Mr. Collins. I object to that on the ground that it
calls for the opinion and conclusion of the witness.
The Court. Just a moment.
Mr. DeWolfe. 'Sgt. Okata knew you were buying
food on the black market?'
The Court. You may answer.
The Witness. I think he did, yes."
Page 173.
XLIX-5488:5-20.
^'Q. Now did you have a disaffection for Japan,
the land of your ancestors, when you went to Japan
in July 1941?
Mr. Collins. 1 submit, if your Honor please, the
question is purely argumentative.
The Court. Objection overruled, the witness may
answer.
A. Could you explain that to me, please?
Mr. DeWolfe. Q. Don't you understand the ques-
tion, Mrs. D 'Aquino?
A. No, I don't.
Q. You don't. Did you have an affection for
Japan, the land of your ancestors, when you went
over there, July 4, 1941, July 5, 1941?
k
54
Mr. Collins. I object to that on the ground the
question is argumentative.
The Court. Objection overruled, the witness may
answer.
A. Well, I had no affection for the country, no.''
Pagfe 173.
XLIX-5494:7-13.
Mr. DeWolfe. Q. You are an American citizen,
aren't you, Mrs. D 'Aquino I
Mr. Collins. I object to that on the ground it is
calling for the opinion and conclusion of the witness.
The Court. The witness may answer, objection
overruled.
Mr. DeWolfe. Q. You are an American citizen,
aren't you?
A. I don't know what I am."
Page 173.
Defendant, XLVII.5251 :10.5253:11.
Mr. DeWolfe. Q, You did not state in 1947 that you
were not Portuguese, did you!
A. May I have that question over again?
Q. Yes. Is it hard for you to understand?
A. You had a double negative there.
Q. Did you state in 1947 that you were not a Portu-
guese, Mrs. D 'Aquino? Can you understand that?
A. Did I not say?
Q. Did you state in 1947 that you were not a Portu-
guese citizen? Do you understand that question? Is that
(luestion difficult for you?
A. I was not
Q. Is the question difficult, Mrs. D 'Aquino?
I
55
Mr. Collins. Just a moment. Let the witness finish
her answer to the question, Mr. DeWoIfe. You have pro-
pounded two or three questions.
The Court. Read the question.
(Question read.)
Mr. DeWolfe. Q. Do you understand that question?
A. Does that mean stated orally or in a statement!
Q. Orally or in a statement, either way. Do you under-
stand the question, Mrs. D 'Aquino, or do you want me to
rephrase itf
A. Let's see. I don't quite get it.
The Court. Read the question.
(Question reread.)
A. No.
Mr. DeWolfe. Q. Is the question hard for you to
understand?
A. I believe my answer is **no."
Q. Was that question hard for you to understand?
Mr. Collins. I submit that is argumentative anyway.
You did not lay the foundation, Mr. DeWolfe.
The Court. The question has been asked and answered.
Let us proceed.
Mr. DeWolfe. Q. Was that question hard for you
to understand?
Mr. Collins. I object to that as argumentative.
The Court. She may answer.
Mr. DeWolfe. Q. Was that hard for you to under-
stand?
A. Yes, because I did not know when in 1947.
Q. You are supposed to be the one who knows, Mrs.
D 'Aquino.
56
Mr. Collins. Just a moment. I submit, if Your Honor
please, that is argumentative.
Mr. DeWolfe. Q. Was the question hard for you to
understand?
Mr. Collins. I submit, if Your Honor please, that is
argumentative.
The Court. She may answer.
Mr. DeWolfe. Q. Was it difficult for you to under-
stand! Answer my question, please.
A. Yes, because I didn't know whether I had made
the statement orally or in a statement.
Pag-e 174.
Defendant, XL VII.5296: 8-5297:3.
Q. I see. Well, you are sure or almost sure that he
didn't tell you that any statement you made could be
used against you! Mr. Hogan?
A. That's correct.
Q. Are you sure or almost sure or positive, which?
A. I don't remember talking to Mr. Hogan.
Q. At all?
A. I could not — I can not recall him saying that to
me, Mr. DeWolfe.
Q. Well, will you say that he didn't say it? Are you
positive he didn't say it?
Mr. Collins. That is argumentative, if Your Honor
please.
The Court. Objection overruled. Let the witness
answer.
Mr. DeWolfe. Q. Are you positive Mr. Hogan didn't
tell you that any statement you made might be used
against you?
57
A. He did not say that to me.
Q. You are positive?
A. Yes, I am almost positive.
Q. Almost positive. Didn^t you ask Mr. Hogan
whether or not you were going to be tried for treason!
A. I don't recall talking to Mr. Hogan about that.
Page 174.
Defendant, XLVIII-5320 :15-5321 :11.
Q. You told your husband after he came over here in
June that you were a Portuguese national, didn't you!
A. I don't know whether I told him, discussed with
him the citizenship problem or not.
Q. Well, you won't say that you did not tell him after
he came over here in June of this year that you were a
Portuguese national, would you!
A. I do not think the subject has ever been discussed.
Q. Would you say you did not tell him that!
Mr. Collins. I submit, if Your Honor please, that is
argumentative. The witness has answered the question.
Mr. DeWolfe. She has not answered it.
Mr. Collins. I further object to it on the ground that
it is a privileged communication between husband and
wife.
■ Mr. DeWolfe. The husband has waived it. He got on
the stand and testified to the conversation. He testified
about this matter on direct and cross examination the
other day when counsel put him on the stand.
The Court. The objection is oveiruled. You may an-
swer. Read the question, Mr. Reporter.
V (Question read.)
I A. 1 can't distinctly recall.
58
Page 174.
Defendant, XLVIII-5374:6-23.
Q. And you told him at that time in substance that you
had considered the idea of becoming a Japanese citizen,
but you dropped the matter because you were not the head
of the house and the whole thing seemed too much trouble.
You told him that, didn't you?
Mr. Collins. Just a moment, Mrs. D 'Aquino. I object
to that on the ground that it is highly improper cross
examination of this witness, upon matters that are not
even touched upon in the direct examination of this wit-
ness.
The Court. The objection will be overruled. You may
answer.
Mr. DeWolfe. Q. You told him that, didn't you, Mrs.
D 'Aquino?
A. No, I told him that that was what I told the police,
to keep me from taking out Japanese citizenship.
Q. You didn't tell Sergeant Cramer that, did you?
A. I told him that was the way T kept from taking
Japanese citizenship, was to give that reason to the
Japanese police.
Page 174.
Defendant, XLVIII-5376 :21-5378 :12.
Q. All right. At about the same time you told Sergeant
Cramer at your home in Tokyo that by a process of
elimination, since you were speaking in the English lan-
guage more than anyone else over Radio Tokyo, or over
the Zero Hour, that is, you must be the one the troops
called Tokyo Rose. You told him that, didn't you. Now
answer that yes or no.
59
Mr. Collins. Just a moment, Mrs. D 'Aquino. We ob-
ject to that on the ground it is highly improper cross
examination of this witness on matters that were not even
touched upon on the direct examination of the witness
and furthermore, it is an improper attempt to impeach
this witness from the testimony of another witness given
at this trial.
The Court. The court has ruled repeatedly on the same
objections, and you have a record here. The objection
will be overruled ; the witness may answer.
The Witness. May I have the question again?
(Previous question read.)
A. I don't recall ever telling him that.
Mr. DeWolfe. Q. Will you say you didn't tell Ser-
geant Cramer, that, Mrs. D 'Aquino!
Mr. Collins. I object to that on the ground it is purely
argumentative.
The Court. The witness answered she does not recall.
Let the question and answer stand. Proceed with your
examination.
Mr. DeWolfe. Q. Will you say you didn't tell him
that?
Mr. Collins. Object to that on the ground it is argu-
mentative, repetitious.
The Court. The objection will be overruled: you may
answer.
Mr. DeWolfe. Q. Will you say you didn't tell him
that?
A. I don't recall.
60
(Page 174.
Defendant, XLVin.5382: 14-23.
Q. Did you tell him on either one of those occasions at
your home that as between typing and broadcasting you
would much rather broadcast?
Mr. Collins. I object to that on the ground it is im-
proper cross examination upon matters that are not
touched upon on the direct examination.
The Court. Objection overruled.
The Witness. What was the question?
(Previous question read.)
A. I may have told him that, yes.
(Page 174.
XLVIII-5383:2.10.
Q. Yes. And you also told him that you thought that
broadcasting might come in handy at some future time?
Mr. Collins. Object to that on the ground it is im-
proper cross examination upon matters not touched upon
in the direct examination of this witness.
The Court. Objection overruled; the witness may
answer.
The Witness. What was the question again, please?
(Previous question read.)
A. No, I don 't remember anything like that.
Page 175.
Defendant, XLIX.5447 :23.5447A :6.
Mr. DeWolfe. Q. Did you broadcast on Armistice
Day, November 11th, 1944, from Radio Tokyo, that it was
time to forget the war and remember the date? Or words
in substance to that effect?
61
Mr. Collins. Just a moment, please. I object to that as
improper cross examination of the witness on matters not
developed on direct examination.
The Court. The objection is overruled. You may
answer.
A. I have never said those words.
Pag-e 175.
Defendant, XLIX-5450:7-20.
Q. Never said anything like that. Did you broadcast
on 8 December 1944, three years after Pearl Harbor in
substance as follows, *^The war is three years old today
and where it stops nobody knows. But why worry, bone-
heads, when I am here? So relax and listen to the pretty
music, like good boys." Did you broadcast vrords to that
effect, in substance, on or about that day, December 8,
19441
Mr. Collins. Object to that on the ground
Mr. De Wolfe (continuing). Or any other date?
Mr. Collins. I object to that on the ground that it is
improper cross examination of the witness upon matters
not even dwelt upon on the direct examination.
The Court. The objection will be overruled, you may
answer.
A. No, I do not recall ever broadcasting anything of
that nature.
Page 177.
XLIX-5398: 6-5399: 5.
"Q. ITow many scripts did you have in your
possession?
A. Oh, let's see; oh, T may have had about, oh,
anvwhere from 15 to 20, perhaps.
62
Q. Well, how many scripts would that be?
A. Well, I mean, 15 or 20 complete scripts.
Q. Well, you testified yesterday that you gave 40
away?
A. No, you asked me
Q. 40 or 50 away with autographs as 'Tokyo
Rose^ on themf
Mr. Collins. No such statement was made in this
court, Mr. DeWolfe.
A. No.
Mr. DeWolfe. You make your objection to the
court, don't speak to me.
Mr. Collins. Well, I object to it on the ground
the question was absolutely misleading, no testimony
was given, and it is an absolute misstatement of the
evidence.
The Court. Read the question, Mr. Reporter.
(Question read.)
The Court. Did you so testify yesterday, if you
recall?
The Witness. My recollection is, when Mr. De-
Wolfe showed me the Japanese money that was
signed, he asked me how many objects I had signed
with the appellation ^Tokio Rose', and I said some-
where around 30 or 40, all told, including the scripts
and the other things. That is the best of my recollec-
tion/'
Page 178.
XXX.3432:17.3433:2.
'*A. First, yes, sir; latterly, no, because latterly,
when I came into possession of the facts by virtue of
an organized attempt to get all the information we
could from every Japanese source, I came into posses-
sion of facts that led me to believe that the war
63
could have been brought to a very swift conclusion if
unconditional surrender had been explained, and in
pursuit of that, I made it my business to get as close
as possible to any Japanese likely to have informa-
tion. I instructed the prisoners at Bunka to do the
same thing, and when Suzuki government was formed
in Japan, I was told that that was the surrender
government.
Q. Did you ever write any broadcasts or any
scripts, the substance of which had to do with un-
conditional surrender!
A. Yes, sir.''
Pagre 178.
Defendant, L-5540 : 14-5546 :1.
Q. You talk, Mrs. D 'Aquino, about filing applications
for re-establishment of your American citizenship in 1947,
is that right?
A. Yes, that is correct.
Q. What you filed, Mrs. D 'Aquino, if you will look at
government's exhibit 5 — and T think it is the same as
your exhibit, this paper; if not, I will let you look at
your own exhibit — but actually what you filed is entitled
^^Application for passport, form for native citizen",
isn't it?
A. I applied for a passport at the same time I ap-
plied for the re-establishing of my United States citizen-
ship, that is correct.
Q. There is no document that you filed entitled '* Ap-
plication for re-establishment of American citizenship",
Mrs. D 'Aquino, is there?
A. I[t] was not included in this other
64
Q. I will show yon your exhibit BP. It says, ^^Appli-
cation for passport, form for native citizen''. That is
just a copy, isn't it, that I have shown you?
A. Yes. Isn't there something else in here?
Q. We will see. *^ Affidavit by native American to ex-
plain protracted foreign residence."
A. Yes.
Q. You filed an application for passport in 1947, didn 't
you?
A. That is right.
Q. And together with the application for passport you
filed State Department form of affidavit by a native Amer-
ican to explain your foreign resident, isn't that correct?
A. That is correct.
Q. And another affidavit that has no heading, all of
which are part of the government exhibit.
A. I think this is the one that said something about re-
establishing United States citizenship.
Q. No, Mrs. D 'Aquino, I will show you both exhibits.
Mr. Collins. Let me put the application for the pass-
port together with the documents.
Mr. DeWolfe. You are not testifying now. Mrs.
D 'Aquino is testifying. Here is the same thing in the
government's exhibit under seal purporting to be com-
plete and correct. You find no statement anywhere that
you filed under this title, ^Application for reestablish-
ment of American citizenship", do you, Mrs. D 'Aquino?
A. I am pretty sure that is the title up here.
Q. Do you think somebody has taken a title off of some
of those exhibits?
A. No, but I distinctly remember because that was the
whole thing from the very beginning, the reestablishing.
65
Q. Isn't it a fact, Mrs. D 'Aquino, all you filed for was
an application for passport accompanied by a State De-
partment form 2 and 3 to explain your residence abroad
and that is all?
A. That is not what vice-consul Pfeiffer told me.
Q. Well, you haven't got any application for reestab-
lishing your citizenship in evidence here in any event,
have you?
A. All those affidavits, those statements and every-
thing— that was what was listed in this memorandum to
file for reestablishment. That is why all these things were
sent in.
Q. None of these applications are for reestablishment
of American citizenship, are they, Mrs. D 'Aquino?
Mr. Collins. Just a moment, Mr. DeWolfe. The docu-
ments speak for themselves, and that is the whole purpose
of such an application, whether it is entitled that or not.
The Court. The objection will be overruled. Let the
witness answer.
A. What was that question?
(Question read.)
A. That was the understanding, yes.
Mr. DeWolfe. Q. The application of 26 May 1947 was
sworn under oath by you, wasn't it!
A. That is correct.
Q. With your picture on it?
A. That is right.
Q. And that is entitled '^Application for passport",
isn't it?
A. Yes, I made the application for passport at the
same time.
Q. And you signed that under oath on 26 May 1947!
66
A. That is correct.
Q. And you stated then that you were a native citizen
of the United States, didn't you?
A. That is right.
Q. And swore to that under oath!
A. That is right.
Q. That is your application for passport, isn't it?
A. That is right.
Q. You accompanied that with some other documents,
didn't you I
A. Yes, that was asked by the consulate.
Q. The next document we find pertaining to your situ-
ation is an affidavit by a native American to explain pro-
tracted foreign residence, isn't it?
A. That is right.
Q. You do not see anything in there about establishing
or reestablishing American citizenship, do you?
A. Not in that one, no.
Q. The next one says, ^'This form must be filled out",
and so forth. It does not say anything about establish-
ment of American citizenship, does it?
Mr. Collins. The document speaks for itself.
A. This is a letter I wrote to the consul just prior to
my application on which I said I would like to make an
inquiry regarding the memorandum, the registration re-
quirements of persons of Japanese ancestry resident in
Japan. I should like to trouble you for a clarification of
items No. 4 and No. 8 of your memorandum.
Q. And you are not able to find in exhibit 5 for the
United States, if you want to look at it, and your own
exhibit BP for the defendant, any State Department forms
that you signed entitled ^'Application for reestablishment
(
67
of American citizenship^' or any title in any government
application with words to that effect, do you!
A. This is the same.
Q. T think they are the same. So what you filed was
an application for passport, Mrs. D 'Aquino, accompanied
by affidavits to explain your residence abroad, isn't that
correct?
A. That was not my understanding, no.
Q. Well, that is what the exhibits, government's 5 and
defendant's BP, disclose, isn't it!
A. Discloses, yes, that T applied for a passport, yes.
Q. And discloses that you filed affidavits at the request
of the State Department to explain your residence abroad,
correct?
A. That part is correct also.
Q. In your application for passport I think you swore
that you were a native citizen of the United States in
1947, is that correct!
A. Yes, I recall.
Q. In your application for passport, defendant's ex-
hibit BP, and in defendant's exhibit BP your affidavit was
signed by you!
A. That is correct.
Q. And this is entitled '*Form 2 and 3, affidavit by
native American to explain protracted foreign residence"?
A. Yes.
Q. The second part does not apply to you, does it, be-
cause it is an affidavit by naturalized native American?
A. That is correct.
Q. In this affidavit that you state you signed, you
signed it on 26 May 1947, defendant's exhibit BP
A. That is right.
68
Q. You signed it under oath?
A. That is right.
Q. You stated again that you were a native American
citizen ?
A. Yes.
Page 179.
Beck V. U. S., 33 F. (2d) 107, 114.
*^The same attitude of counsel is exhibited in the
manner of examining witnesses. For example, a wit-
ness on direct examination would testify that Mr.
Barrett, or some one else, made a certain statement.
Counsel would then ask, *was Mr, Beck in the room?
The witness answered, ^He was there sometimes \
Counsel would then ask 'Did they tell youT so and so
leaving a direct impression that Mr. Beck made the
representations, an impression not intended by the
witness' \ ('Hhey" italicized in original).
Page 182.
Hadgedom, XXXIX-4327 :1 9-4328 :2 ; 4329:2-4331:13.
Q. Did you make reference in your log at any time
to Tokyo Rose!
A. Yes.
Q. On what day?
A. On July 25, 1943.
Q. What was the reference that you made in your log?
Mr. DeWolfe. I object to it as immaterial. Your Honor,
irrelevant and incompetent. She never heard the Zero
Hour program, never heard a woman announce the name
Tokyo Rose over the air, and the question is irrelevant
and immaterial.
69
Q. Does your log show the name of any person who
made that announcement!
Mr. DeWolfe. T object to that as immaterial, Your
Honor.
The Court. Q. Was this on the Zero Hour?
A. No.
Q. From Tokyo?
A. From Tokyo, but not on the Zero Hour.
Q. Time?
A. I haven't entered the time, but I am sure it was on
the broadcast beginning at 11:00 o'clock in the morning.
The Court. The objection is sustained.
Mr. Collins. Q. Did you make a note in your log at
tlie time you received that broadcast on July 25th
A. On July 25th, 1943.
Q. Did you make reference in your log to the person
who had broadcast that announcement?
A. Yes.
Q. What name did you enter in your log as having
made that announcement?
Mr. DeWolfe. Objected to as incompetent, irrelevant
and immaterial, months before the defendant went on the
Zero Hour. Mrs. Hagedorn stated yesterday on voir dire
she did not listen to the Zero Hour or Orphan Ann.
Mr. Collins. It is a (juestion of identification of Tokyo
Rose, if Your Honor please.
Mr. DeWolfe. W^hat entry she made of the name of
tlie person would be immaterial.
The Court. Objection sustained.
Mr. Collins. I would like to make an offer of ])roof
on that particular point.
70
Mr. DeWolfe. I do not think that is necessary. He
has a record.
Mr. Collins. Q. On July 25th, 1943, upon receiving by
shortwave radio, Kadio Tokyo, about 8:00 o'clock in the
morning a broadcast of a woman's voice, did you enter
in your log the name of Tokyo Rose as having made that
specific broadcast?
Mr. DeWolfe. Objected to as incompetent, irrelevant
and immaterial, hearsay, and not the best evidence.
The Court. Objection sustained.
Mr. Collins. I make an offer of proof now that if the
witness were permitted to answer the questions pro-
pounded to her in connection with this offer of proof,
that her answer would be, ^^Yes''.
The Court. I do not follow you.
Mr. Collins. Well, I will withdraw it. I would like to
make an offer of proof that if the same question be pre-
sented to the witness who is now on the witness stand
that her answer and response to that question would be
that she entered in her log at July 25, 1943 that the
broadcast made by a woman's voice at 8:00 a.m., making
the announcement that Radio Tokyo would soon have a
new program to the East Coast, was entered in that log
under the name of Tokyo Rose.
Page 183.
Stanley.
First he places himself at Dutch Harbor from August,
1942, to October, 1943. (Stanley, XXXIX-4339:20-23) :
'^Q. When did you go to Dutch Harbor!
A. It must have been about August 1942.
71
Q. How long did you remain at Dutch Harbor, ap-
proximately?
A. 14 months."
He is not allowed to give testimony that a radio broad-
cast was identified as ^' Tokyo Rose" during this period
(Stanley, XXXIX- 4340:14-4342:4) :
''Q. While you were at Dutch Harbor, was any
person identified to you as being Tokyo Rose!
Mr. DeWolfe. I object to that as hearsay.
The Witness. I heard her mentioned.
The Court. Just a moment. The objection will be
sustained.
Mr. Collins. Q. While you were at Dutch Harbor,
did you hear any discussion among our troops con-
cerning any lady known by the name of Tokyo Rose?
Mr. DeWolfe. Objected to as incompetent, irrele-
vant and immaterial, and hearsay. He was up there in
August, 1942
Mr. Collins. Then I will just make an offer of
proof on this.
The Court. The objection will be sustained. You
have a record on it.
Mr. Collins. I would like to offer to prove
The Court. Proceed in the usual way. / am not
entertaining an offer of proof. Proceed.
Mr. Collins. Your Honor is going to bar me from
making an offer of proof on that point?
The Court. Proceed by (juestion and answer and
you will have a record.
Mr. Collins. 1 wish to make an offer of proof by
this witness at this time that while he was at Dutch
Harbor
Mr. DeWolfe. 1 object to this form of procedure,
Your Honor.
\ The Court. Objection sustained.
72
Mr. Collins. Q. Did you, while at Dutch Harbor
in August of 1942, hear any discussion from our
troops there stationed with you concerning a person
designated as Tokyo Rose?
Mr. DeWolfe. Objected to as calling for hearsay.
The Court. Objection sustained.
Mr. Collins. I make an offer of proof that if the
witness jj
The Court. It is clearly hearsay.
Mr. Collins. I understand that. Your Honor, but I
wish to make an offer of proof because I think this
goes to the gossip source of stories
The Court. You may have your own thought on
this, but this Court has ruled. Proceed in the usual
way.
Mr. Collins. Am I denied making an offer of proof
on that point?
The Court. Proceed.''
Pa^e 183.
Cox, XXXVII>4243:15-4244:25.
Q. Yes. Now prior to the time you were shot down,
Mr. Cox, had you ever heard of the name ^^ Tokyo Rose"?
A. I had heard of her.
Mr. Knapp. Objected to, your Honor, on the ground
of hearsay.
The Court. Clearly hearsay; objection sustained.
Mr. Collins. It is a question, if your Honor please, as
to whether or not there was generally known at that time
any person known as Tokyo Rose, whether it was by
virtue of mere gossip or rumor.
The Court. Well, this is mere conversation between
someone. What he heard.
Mr. Collins. Yes.
73
Q. Well now, prior to the time you were shot do^\Ti,
did you have any discussion or enter into a discussion
^v^th any persons concerning the name ^^ Tokyo Rose''!
Mr. Knapp. Objected to, your Honor, on the ground
it is hearsay.
The Court. Objection sustained.
Mr. Collins. Q. Well, while you were at Port Moresby
in New Guinea, did you have any conversation with sol-
diers or officers who listened to foreign radio broadcasts?
Mr. Knapp. Objected to, your Honor, on the ground
it is hearsay.
The Court. Fix the time.
Mr. Collins. Q. January or February of 1943?
A. Yes, sir.
Q. Now were the conversations concerning the appella-
tion ''Tokyo Rose''?
Mr. Knapp. Objected to, your Honor, on the ground
it is hearsay.
The Court. Objection sustained, clearly hearsay.
Mr. Collins. It is a question of fixing just an identity.
We are not attempting to establish whether it was the
defendant or who it was.
The Court. The court has ruled.
Page 183.
N. Gupta, XXXIX-4413:21.4414:13.
"Q. While you were in Honolulu in 1942, that is,
after August of 1942, did you listen to any foreign
shortwave radio broadcasts?
A. In Honolulu, no.
Q. You did not?
A. 1 only heard rumors.
74
Mr. Collins. Q. Of what?
Mr. DeWolfe. I object to that.
The Court. This is no place for rumors. The objec-
tion is sustained.
Mr. Collins. Q. While you were on Honolulu, did
you hear the name Tokyo Rose?
Mr. DeWolfe. Objected to as hearsay.
The Court. Sustained.
Mr. Collins. Q. During the year 1942, Mr. Gupta,
did you ever hear the name Tokyo Rose!
Mr. DeWolfe. I object to that as hearsay.
The Court. Sustained.''
Pag:e 196.
II Arg. 328:1-21.
^*Here is what he says about Cousens, who was a
proponent of what the Japanese fondly called the
* Greater East Asia co-prosperity sphere'. Exhibit 52.
Now this is her owti witness. You will have this ex-
hibit in the jury room. Here is what he says about
his fellow witness, his fellow worker at Radio Tokyo :
*T recall that Major Charles Cousens, Australian Im-
perial Forces, who had been taken a prisoner of war
by the Japanese army, was also engaged in work at
Radio Tokyo. During the time I was associated with
him, I became convinced (this is Reyes) that he (that
is, Cousens) believed that the polictical problems of
Asia and the Pacific Islands could only be solved
through the domination of this territory by a strong
power, namely, a beneficent Japan. This coincided
with the Japanese propaganda idea of the greater
East Asia co-prosperity sphere. It is my belief (that
is the defendant's witness) that Major Cousens was
induced to take part in the broadcasting of propa-
ganda from Radio Tokyo because he thought that he
75
would have a voice in explaining this idea to the listen-
ers of Radio Tokyo.''
''The defendant's own witness says that Cousens
was pro- Japanese."
Page 199.
Igrarashi, XXIV-2621:23-2624:10.
''Q. What did the defendant say in substance on
that occasion, according to the best of your recollec-
tion?
A. 'Back in the United States you listened to this
music. Now listen. '
Q. Will you repeat that again *?
Mr. Collins. Just a minute. I ask that the Re-
porter read it.
The Court. The Reporter may read the answer.
(Last answer read.)
Mr. DeWolfe. Q. Is that all that was said or were
there some other words in connection with that state-
ment?
A. Well, to the best of my recollection on that
occasion, that is all I can recollect.
Q. Did she say anything about sweethearts?
Mr. Collins. Just a moment, if Your Honor please.
I suggest that is leading and suggestive and deliber-
ately coaching the witness and prompting the witness,
too, and I assign that as misconduct on the part of
the prosecution and ask that the jury be instructed
to disregard the statement in its entirety.
The Court. Submitted!
Mr. DeWolfe. Yes, sir.
The Court. It is clearly leading and suggestive.
tLet the jury disregard it for any purpose in this case.
Mr. Collins. The defense assigns that as miscon-
duct on the part of the prosecution, deliberately so.
76
Mr. DeWolfe. Don't get excited.
The Court. The Court will take a recess. I will
ask the jurors to retire.
(Eecess.)
Mr. DeWolfe. Mr. Reporter, do you have the last
question^
(The reporter read the last question.)
Mr. Collins. I assign that again, if your Honor
please, as prejudicial misconduct on the part of the
prosecution in this case. He is deliberately prompting
and coaching the witness again.
Mr. DeWolfe. I asked the reporter to read the
question, your Honor.
Mr. Collins. You certainly knew what the last
question was, Mr. DeWolfe.
Mr. DeWolfe. You are stating a falsehood. I did
not know it.
Mr. Collins. I ask that the jury be instructed to
disregard the remark. I still assign it as misconduct
on the part of the prosecution, and highly prejudicial
misconduct.
The Court. The objection will be sustained. Pro-
ceed. Reframe the question.
Mr. DeWolfe. I asked the reporter to read tlie
last question. I did not ref rame the question. I asked
the reporter to read the question.
The Court. I asked you to proceed.
Mr. DeWolfe. Q. What was the last statement in
substance according to your best recollection that you
heard the defendant make?
A. She said in substance, *Back in the United
States you listened to this music. Now listen.'
Q. Do you remember anything else she said on
that subject?
Mr. Collins. I submit the question has been asked
and answered twice already.
77
The Court. It may be answered again. The objec-
tion is overruled.
Mr. DeWolfe. Q. Any other words in that state-
ment?
A. ^Back in the United States with sweethearts
you listened to this music. Now listen.'
Mr. DeWolfe. That is all the direct examination.''
Page 199.
Ito, XL-4529:7-4530:5.
^'Q. And substantially was the subject matter of
those conversations concerning radio work the same
in your conversations with herf
A. We didn't talk much about radio work.
Q. But you talked about the radio work, didn't
you!
A. Occasionally, yes.
Q. And her conversation with you during those
years from 1942 to 1945 on her radio work was sub-
stantially the same, about the same matters!
A. I don't understand what you mean.
Q. She talked to you about the same things con-
cerning her work on the radio ; didn 't she talk to you
about her work at the radio!
Mr. Collins. Objected to as incompetent, irrelevant
and immaterial.
Mr. DeWolfe. She answered on direct examination
from 1942 to 1945 she talked about her annonncinr/.
Mr. Collins. There were no conversations devel-
oped with reference to work. The questions related
specifically to citizenship and the documents.
The Court. Read the question.
(Question read.)
The Court. The objection ig overruled. You may
answer.
A. Yes, I guess she did."
78
Page 200.
Defendant, XLVIL5286:10-11.
Q. You tell me ; I wasn H there. Were you ever natural-
ized a Portuguese citizen ! Answer that yes or no and then
explain if necessary.
XLVII-5287:24.5288:13.
Q. It is a correct statement!
A. Yes. May I explain it?
Q. No.
Mr. Collins. Just a moment. We ask for the court's
ruling. Mr. DeWolfe substituted himself for the court.
Mr. DeWolfe. I am always subject to the court's in-
struction. The court knows that.
The Court. You will make me nervous if you are not
careful. Read the question.
(Question read.)
The Court. Q. Did you answer that question yes
or no!
A. Yes, and I asked if I might explain.
Q. What did you answer?
A. Yes.
Q. Now you may explain.
Reyes, XXXIII-3788 :7-23.
Q. And that testimony that you gave was false,
wasn't it?
A. YeSy it was. May I explain?
Q. No,
Mr. Collins. Just a moment. We ask for a Court's
ruling on that. The witness desires to explain his answer.
79
Mr. DeWolfe. Q. I think he can be allowed to ex-
plain on redirect.
Mr. Collins. The witness is asked to explain. His an-
sw^er is not complete. You got a yes or no answer; it
should be qualified.
The Court. Read the question.
(Question read.)
The Court. Q. What is it that you want to explain?
The falsity of the testimony?
A. I wanted to explain these statements given to the
FBI, sir. There is a difference between everything T
told them and w^hat finally appeared on the statements.
Reyes, XXXV-3966:5-6, 13-23.
Q. Was everything that you told agents Tillman and
Dunn in October true, yes or no?
A. May I answer and explain that?
Mr. DeWolfe. Q. No, you answer the question yes
or no, Reyes. It calls for a yes or no answer. We don't
need explanations from you.
Mr. Collins. Just a moment, please, we object to coun-
sel's statement made to the witness and we ask the court
for the ruling.
The Court. Read the question.
(Question read.)
The Court. He may answer that question.
A. No.
80
Pagfe 205.
2 Wigmore on Evidence (3d ed.), Sec. 278, p. 120.
^^It has always been understood — the inference, in-
deed, is one of the simplest in human experience —
that a party's falsehood or other fraud in the prepa-
ration and presentation of his cause, his fabrication
or suppression of evidence by bribery or spoliation,
and all similar conduct, is receivable against him as
an indication of his consciousness that his case is a
weak or unfounded one; and from that consciousness
may be inferred the fact itself of the cause's lack of
truth and merit. The inference thus does not apply
itself necessarily to any specific fact in the cause, but
operates, indefinitely though strongly, against the
whole mass of alleged facts constituting his cause.''
(Italics in original.)
2 Wigmore on Evidence (3d ed.). Sec. 278, p. 120.
Page 206.
II Arg. 260:2-5; 260:12-21; 292:22-293:9.
* * * We are supposed to be fair. * * * We are trained
to be fair. I know that Mr. Hennessy is fair, and it is
our duty to be fair; and we are enjoined to follow the
lines of fairness.
We are not supposed to, and do not, seek the convic-
tion of any innocent person. We are required to, and
do, protect the rights of the innocent. This defendant,
Iva Toguri D 'Aquino, is entitled to, under the laws of
our land, a fair trial. She is getting it. She has had it,
or will have had it shortly after his Honor instructs you
ladies and gentlemen and after you retire to your jury
room to deliberate upon the facts. She is entitled to the
81
rights that each and every defendant is entitled to in
every federal criminal proceeding. His Honor has scrupu-
lously protected her rights. * * *
Well, the government is unjust, Mr. Olshausen says.
The prosecution is unjust, unfair, downright crooked. His
remark hardly merits the dignity of a reply. Mr. Hen-
nessy has been United States Attorney here for your
Federal Judicial District for 13 years, a man of renown
and learning at the federal and state bars, a gentleman
of good and kindly character, of impeccable i)robity and
unimpeachable integrity. As for myself, I need no de-
fense. I have been with the government well over two
decades, and the kind of attack that you hear from Mr.
Olshausen is the same slurring, scurrilous attack that you
can expect, and we have all experienced in the past from
the average criminal lawyer. That is their stock in trade.
When the house falls, try the United States. Call it
crooked.
Page 214.
K. Murayama re Myrtle Listen, R. 847-8.
*^Q. Do you recall any script being prepared by
you which referred to a short story of a girl at home
and a boy friend who was ineligible for the Army?
Mr. DeWolfe. Objected to as incom])ctent, not the
best evidence.
The Court. Submitted?
Mr. Collins. Yes.
The Court. The objection will have to be sus-
tained.
(A. There were several scripts. 1 can't recall the
exact contents, but the general tenor was such as you
1
82
have mentioned. We had stories, short scripts shall
we say, of girls having dates with men at home, while
possibly their sweethearts or husbands might be fight-
ing in the Southwest Pacific area.)
Q. Do you recall anything about malaria, jungle
rot, and high cost of living, or scripts of that tenor?
Mr. DeWolfe. Object to that as immaterial and
incompetent; hearsay; not the best evidence; irrele-
vant.
The Court. Objection sustained.
(A. I can't give you any exact quotation regard-
ing malaria or jungle rot, but I am sure some of the
scripts must have included diseases which were prev-
alent in the tropical areas.)''
Page 218.
People V. Stevenson, 103 Cal. App. 82, 93, 284 P. 487.
'^The only way in which prejudicial error could
possibly be shown is by an inspection of said tran-
script, and this right has been denied him. It was
not intended that said constitutional provisions [re-
quiring the appellant to show prejudice] should be
applied in such a case. To so apply them it would
require a showing on the part of the defendant which
is rendered impossible by the act of his adversary.
The constitutional provisions impose the burden of
showing prejudice or injury by a ruling which is
within the power of the complaining party to present.
It does not contemplate a situation where such party
without fault has been denied an opportunity to de-
termine w^hether or not he has been prejudicially
injured * * * We * * * hold * * * that a complaining
party should have an opportunity to show injury".
83
Pag-e 224.
Moriyama, XXI V-2550 : 13-2551 :10 ; 2551 :21-2552a :15.
Mr. DeWolfe. Q. Are you able to recall in substance
any particular statement that Miss Toguri made over the
air during the period of time that you were there? You
can answer that ^Yes^' or '^No''.
Mr. Collins. I object to that on the ground it is too
vague, indefinite, and uncertain, and no foundation has
been laid.
Mr. DeWolfe. 1 am trying to lay the foundation.
The Court. Read the question.
(Question read.)
The Court. You may answer the question. Overruled.
A. Yes, sir.
Mr. DeWolfe. Q. During what period of time was
that statement made, according to your best recollection,
approximately?
A. It was between May, 1944 and September, 1946.
Q. ^V^lere were you when you heard that statement
made ?
A. I was in the broadcast studio of Radio Tokyo.
Q. In Tokyo!
A. Yes, sir.
Q. Who was in the studio with you?
A. Norman Reyes, Ken Oki, Mrs. D 'Aquino and my-
self.
Q. Are you able to fix the date any more specifically
than between May, 1944 and September, 1945?
A. No, sir.
Q. What did she say in substance, according to your
best recollection on that occasion, Mr. Moriyama?
84
Mr. Collins. I object to that on the ground it calls for
the opinion and conclusion of the witness, on the further
ground it is based upon hearsay, and the further ground
it is not the best evidence, and the further ground no
foundation has been laid, and on the final ground that
it is incompetent, irrelevant, and immaterial.
The Court. The objection is overruled. Read the ques-
tion.
(Question read.)
A. This was between records when she made com-
ments. She said, * Wasn't that wonderful music? How
would you like to be at the Cocoanut Grove dancing with
your girl to this music?"
Q. What else?
A. This was on another occasion
Mr. Collins. I would like to interpose the objection
again to this additional testimony on this other occasion
on the ground it calls for the opinion and conclusion of
the witness, and on the further ground it is a voluntary
statement on the part of this witness at the present time,
and the further ground it is based upon hearsay, and the
further ground it is not the best evidence, and the fur-
ther ground that no foundation has been laid, and on the
final ground it is incompetent, irrelevant and immaterial.
The Court. Read the question.
(Question read.)
The Court. Overruled.
Mr. DeWolfe. Q. And the other occasion was between
what dates, Mr. Moriyama?
A. That was also between May, 1944 and September,
1946.
85
Q. And you were where when you heard her make the
statement?
A. I was in the broadcasting studio.
Q. With her!
A. Yes, sir.
Q. Who else was present, if you recall?
A. The Zero Hour staff, the usual staff, consisting of
Norman Reyes, Ken Oki, myself, Mr. Oshidari, and Mrs.
D 'Aquino.
Q. Are yon able to fix the date any more accurately
than being between May, 1944 and September, 1945?
A. No, sir.
Q. What time of day was it?
A. This was about 6:15 in the evening.
Q. What did Mrs. D 'Aquino say in substance, accord-
ing to your best recollection, on this other occasion, as
you put it?
A. This was also between records. *^My, but it is hot."
Page 224.
Mitsushio, XIII.1325:19-1326:21.
Mr. DeWolfe. Q. When did Ince cease broadcasting
on the Zero Hour at Radio Tokyo?
Mr. Collins. I submit that is improper and 1 object to
it on that ground.
The Court. Objection overruled.
The Witness. On or about April 1944.
Q. /,s that when he ceased broadcasting or ceased worlc-
ing on the Zero Hour?
Mr. Collins. I submit it constitutes cross examination
of the ])rosecntion's own witness, and further, it is im-
proper.
86
The Court. Objection overruled. He may answer.
A. He ceased to come to Kadio Tokyo.
Mr. DeWolfe. Q. When did he cease broadcasting on
the Zero Hour, if you know?
Mr. Collins. I submit the question has been asked and
answered.
The Court. Objection overruled.
Mr. Collins. And constitutes the cross examination of
the prosecution \s own witness.
The Court. Objection overruled. You may answer.
A. On or about April 1944.
Mr. DeWolfe. Q. Did he work on the Zero Hour in
any capacity after April 1944?
A. No, he did not.
Q. Is that when he stopped broadcasting!
A. He stopped broadcasting.
Q. What time?
A. About April 1944.
Page 224.
Ishii, XVn-1829:10-14.
Mr. Hogan. Q. Mr. Ishii, state what you said in sub-
stance, to the best of your recollection, in your news
broadcast when Mrs. D 'Aquino was present in the studio.
Mr. Collins. Objected to as calling for hearsay, calling
for the opinion and conclusion of the witness.
1831 :8.19.
Q. What did you say, to the best of your recollection,
in the news broadcasts on those days in the presence of
Mrs. D' Aquino?
87
Mr. Collins. I object on the ground it is calling for the
opinion and conclusion of the A\4tness and entirely too
general a question and utterly incompetent, irrelevant and
immaterial, and further, no foundation has been laid.
The Court. He may state what he said in the presence
of the defendant during that period.
Mr. Collins. I submit no foundation has been laid.
A. As to my news broadcasts, I can only say that they
dealt with war news from Japanese military sources and
emphasized allied war losses.'*
Page 225.
Lee, Vin-601:1-10.
''Mr. DeWolfe. Q. Did you hold Mrs. D 'Aquino
in detention, Mr. Lee?
A. Beg your pardon?
Q. Did you hold Mrs. D 'Aquino in detention?
A. No, I did not.
Mr. Collins. T object to the question on the ground
it is improper redirect examination. He can not im-
peach his own witness. He has already testified she
was behind locked doors.
The Court. The objection is overruled."
Page 225.
Nil, XXV-2733:ll-2735:6; XXV-2736:21-2739:19.
Q. And you and Mr. Tamba were in the room alone?
A. Yes, sir.
Q. And how much whisky?
A. A quart of Four Roses and maybe a bottle of Sun
nvbrook Whiskv.
88
Q. Was Mr. Tamba intoxicated!
A. When I went there, he was already red in the face.
He was probably drinking with Mr. D 'Aquino and his
friend.
Q. How much did he have to drink?
A. I donH know. I was drinking fast.
Q. Did you bring your liquor up to Mr. Tamba 's room
or did he furnish the liquor?
A. He furnished the liquor.
The Court. Do you expect to get through with this wit-
ness?
Mr. DeWolfe. I could in about three minutes, Your
Honor.
The Court. The jurors may be excused until 2:00
0 'clock.
(Thereupon at 12:03 p.m. an adjournment was taken to
2:00 o'clock p.m.)
Afternoon Session, Thursday, August 11, 1949,
2:00 o'clock.
The Court. Proceed.
Motomu Nil
resumed the stand.
Redirect Examination (continued).
Mr. DeWolfe. Q. How much liquor was there in Mr.
Tamba 's room, in view on the table?
A. A quart of Four Roses.
Q. Was there any more liquor there?
A. I don't remember, but after we finished the quart,
there was another quart.
Q. Who produced the other quart?
89
A. That T have a faint idea— I don't remember very
well, but must be either Mr. Tamba or Mr. Nakamuro.
Mr. Collins. I ask that that be stricken out as consti-
tuting the opinion and conclusion of the ^\dtness.
The Court. The question and answer will stand.
Mr. DeWolfe. Q. Did you bring any liquor up to Mr.
Tamba 's room?
A. No, sir.
Q. Who poured your drinks when you first went up?
A. Mr. Tamba offered me a drink.
Q. Who poured them?
A. Mr. Tamba.
Q. Had Mr. Tamba been drinking?
A. I thought he had some drinks when T w^ent, because
it already showed in his face.
Mr. Collins. I ask that that be stricken out as consti-
tuting the opinion and conclusion of the witness, and no
foundation has been laid.
The Court. The objection is overruled. Let it stand.
Q. Now, can you tell me approximately how much,
what quantity of intoxicants you were used to consuming
from January to the present time per day?
Mr. DeWolfe. I don't think that is proper cross-exam-
ination, Your Honor.
The Court. The objection w411 be sustained.
Mr. Collins. Q. Well, as a matter of fact, you wore in
Tokyo, and at the time you saw Mr. Tamba, Mr. Nakamuro
and Mr. Philip D 'Aquino, you were used to consuming
more than a pint of intoxicating liquor per day, isn't that
true?
Mr. DeWolfe. Same objection.
90
The Court. The objection will be sustained.
Mr. Collins. Q. Well, it was customary for you as a
matter of fact to consume more than a pint of hard liquor
per day at the time that you saw Mr. Tamba in Japan,
isn't that true!
Mr. DeWolfe. Object to that as not proper cross exam-
ination.
The Court. Objection sustained.
Mr. Collins. Q. Well, the amount of intoxicating
liquor that you consumed in the presence of Mr. Tamba in
Japan in April or May of 1949 was the usual quantity of
liquor that you had been accustomed to consuming, isn't
that true?
Mr. DeWolfe. Object to that as not proper cross
examination.
The Court. Objection sustained.
Page 226.
Hall, XXVL2942:4-2944:11.
Q. Do you recall when Raboul was reduced or secured
to our troops?
Mr. Knapp. I object. Your Honor. Counsel is going far
afield into another collateral matter.
The Court. The objection will be sustained.
Mr. Collins. Q. You knew, as a matter of fact, that
there was a radio station controlled by the Japanese that
was broadcasting from Kaboul in New Britain at all times
when you were at Port Moresby, Dobodura, Nadzab and
Biak, isn't that true!
A. No, never having been there either, I did not know.
Q. Weren 't our troops bombing Eaboul when you were
at Port Moresbv?
91
A. They were.
Q. Weren't they also bombing it when you were at
Dobodura?
Mr. Knapp. I object to this line of examination.
The Court. The objection will be sustained.
Mr. Collins. Q. Do you recall w^hether or not you
heard any broadcast via radio from a Japanese-controlled
radio station at Raboul?
Mr. Knapp. Your Honor, I object to that question.
This witness testified on cross examination he heard only
one other related broadcast and that was at Java. It has
been gone into at great length. Now, he is going to do
the same thing for Raboul and I do not know how many
others.
The Court. Submitted?
Mr. Collins. Yes.
The Court. Objection sustained.
Mr. Collins. T would like to point out to Your Honor
this, that w^e are concerned now with the witness testify-
ing from the stand that he hears over the radio a pro-
gram that is coming from a foreign country thousands of
miles away, and we are concerned now with the question
of identification of that radio station. It is obvious that
the witness was not at Radio Tokyo, that he was not at
Java, and other sources, but he is permitted to testify in
this proceeding as to a radio program that he identifies as
coming over Radio Tokyo. We are now trying to test his
memory and to test the facts to ascertain whethei- in truth
and in fact he heard such a program emanating from some
other station and we submit to Your Honor we are en-
titled in all justification to endeavor to prove from this
witness that matter. The witness' testimony relates to
92
matters heard over the air five years ago. I say it is
impossible for any human being to identify without look-
ing at a radio dial from whence any radio could have
emanated five years ago.
The Court. His testimony was the speaker announced
the radio.
Mr. Collins. Yes, I admit that, Your Honor. That is
what his testimony may be. But for all I know, there may
have been ten, fifty or one hundred stations announcing
that the programs were emanating from Radio Tokyo or
from other sources. That is one of the issues we have
been endeavoring to ascertain in this case.
The Court. And I have permitted you the widest
latitude. You have gone over the testimony in every
detail and the Court has ruled. Now we will proceed with
this trial.
Mr. Collins. Did Your Honor rule against me, that I
can not ask such a question?
The Court. Yes, I sustained the objection.
Pagre 226.
Baptist, XVII.1818:8.1819:25.
The Court. Now, is this document complete! Before
we adjourned there was a question about it.
Mr. DeWolfe. Oh, sir, there was a page that was taken
out before it was identified. I wouldn't take anything out
after it was marked by the clerk, of course.
The Court. Is that page available now?
Mr. DeWolfe. Yes, sir, it has been given to counsel
for the defendant, and the reason that it was taken out
of this document
93
The Court. I am not concerned now with the reason,
but if this document goes in it will go in in its entirety.
Mr. DeWolfe. Yes, and this document now is offered,
with the exception of the last three pages, in evidence,
the last four pages, as being exactly, according to the
record testimony, the same as Exhibits 16 to 21, sir. It
is offered for the purpose of illustrating the contents of
those documents.
The Court. Where is that page you were talking
about! Is that in this document now?
Mr. DeWolfe. No, sir, it is not.
The Court. Where is it?
Mr. DeWolfe. I have handed a copy to counsel for
the defendant, and we will be glad to include it in here,
sir.
The Court. If that is included, I will allow it in evi-
dence next in order.
(U.S. Exhibit 25 for Identification was thereupon re-
ceived in evidence.)
Mr. DeWolfe. We will go ahead with another witness
while my colleague inserts that in that exhibit, sir.
Mr. Collins. Since some additional material is to be
inserted
The Court. Not additional. That is the complete docu-
ment, as I understand it, now.
Mr. Collins. As I understand it, the broadcast of
August 11, on inserting the four additional pages
Mr. DeWolfe. I don't know the date. My colleague is
gone. That is the date of the matter that was torn out,
prior to the time it was marked, to conform to the ex-
hibits that are in evidence, 16 to 21.
94
Mr. Collins. It is only that one-half page that was
torn, is that correct?
Mr. DeWolfe. I think it is more than that.
We mil go ahead with another witness, sir, while he
does that.
XVIII-1847:4.20.
Mr. DeWolfe. I may have misunderstood Your Honor
yesterday, but I was following Your Honor's instructions
as I thought.
Now, there is a matter I want to make clear to the
Court if I haven't done it. In Government Exhibit 25
when it was identified there were several pages out of it
and we did not change it from the time it was identified.
Then Your Honor instructed me to add some pages to
make it complete, which he did; but those pages that were
added are not in Exhibits 16 to 21. For that reason we
didn't think that ought to be in this Exhibit 25, but we
added them to 25.
The Court. I understood that fully, my thought being
we were not going to separate any of this material, but
that it should be offered as a whole so there was no ques-
tion about it.
Mr. DeWolfe. Very well. But I wanted to make clear
that it does not exactly conform now to Exhibits 16 and
21 because of the additional pages.
The Court. Very well.
Page 231.
Saisho, R. 407-8.
''Q. Did you ever know Mr. Ken Okil
A. Yes.
95
Q. Do you know his reputation for truth, honesty
and integrity in this community?
Mr. DeWolfe. T object to that as incompetent, ir-
relevant and innnaterial, no proper foundation being
laid and not a proper impeachment question.
The Court. Objection sustained.
(A. Not good at all.)
Q. Do you know Ken Ishii?
A. Yes.
Q. Do you know his reputation for truth, honesty
and integrity?
Mr. DeWolfe. I object to that as being incompe-
tent, irrelevant and immaterial, not proper impeach-
ment, no foundation laid.
The Court. Objection sustained.
(A. Not good at all.)
Q. Do you know George Nakamoto?
A. Yes.
Q. What is his reputation for truth, honesty and
integrity?
Mr. DeWolfe. Objected to as being incompetent,
irrelevant and immaterial, not proper impeachment,
no proper foundation laid.
The Court. Objection sustained.
(A. It wasn't particularly too good.)
Q. 1 think that is all."
Page 232.
Reyes, XXXII-3705:20-3707:5.
"Q. Was Ince married there about the same time?
Mr. Collins. I submit, if your Honor please, that
is absolutely incompetent, irrelevant and immaterial
and is improper cross-examination and is assuming
a fact not in evidence.
The Court. You may indicate for the purpose of
the record the purpose of this testimony.
96
Mr. DeWolfe. I want to find out if Ince was mar-
ried on or about that time and to whom, if this wit-
ness knows.
The Court. What relation would that have to any
issues in this case?
Mr. DeWolfe. Well, it would have some bearing
on the witnesses and their relation, and so on.
The Court. For that limited purpose, I will allow
it. Read the question, Mr. Reporter.
(Question read.)
A. No.
Mr. DeWolfe. Q. Did he marry a Filipino woman?
Mr. Collins. I submit, if your Honor please, this
is highly incompetent, irrelevant and immaterial. It
is a deliberate attempt to prejudice this jury against
witnesses.
The Court. Read the question, Mr. Reporter.
(Question read.)
Mr. Collins. I assign that as misconduct on the
part of counsel for the prosecution, if your Honor
please.
The Court. If he knows, he may answer. The ob-
jection will be overruled.
A. I don't know.
Mr. DeWolfe. Q. You do know, don't you, Nor-
man?
Mr. Collins. That has been asked and answered.
A. I know the name of the woman.
Mr. DeWolfe. Q. You know he married a Fili-
pino woman?
A. No, I do not.
Mr. Collins. I submit, if your Honor please, that
has been asked and answered, and is argumentative.
The Court. He says, *No, he does not'."
97
Page 232.
Defendant, XLVI-5160 :7-17, 5161:5-18.
'^Q. Were you asked to read anything there for
the correspondents?
A. Just one eorres])ondent — T understood him to
be an Australian correspondent — asked me to read a
phrase which he heard frecjuently down in the South
Pacific to verify the voice, because he said my voice
did not sound anything like the voice he heard in the
South Pacific. T read this one phrase. T have for-
gotten what the phrase was.
Q. What did he say, if anything, after you read
the phrase?
Mr. DeWolfe. I object to it as hearsay.
The Court. Clearly hearsay. The objection will be
sustained. * *
*'The Court. The court is prepared to rule. I will
sustain the objection. Lay a foundation for any ques-
tion. Protect your record.
Mr. Collins. Q. Did the Australian correspondent
make any statement to you after you had read this
phrase at his re(|uest in the presence of United States
correspondents who were in the unifonn of the United
States army at the Bund Hotel interview you had
with correspondents on September 5, 1945?
A. Yes, he said, he told me that the voice was
nothinrj like what he heard in the South Pacific.
Mr. DeWolfe. I move that it go out as hearsay
and a conclusion.
The Court. Let it go out. The jury will disregard
it. The objection is sustained.''
98
Page 234.
Defendant, XLVn-5209:15-5212:15.
Mr. Collins. Q. Now, Mrs. D 'Aquino, just prior to
your release from Sugamo Prison in Tokyo on October
25 of 1946, did you have a conversation with Major
Swanson, who was one of the prison authorities at Su-
gamo jail, concerning your release?
A. Yes, I did.
Q. Was anybody else present besides yourself and
Major Swanson?
A. Yes, there was a Sergeant Hennecke.
Q. And can you tell us what date that conversation
took place!
A. It was October 25, about 11 o'clock in the morning,
1946.
Q. Yes. Will you state what that conversation was!
Mr. DeWolfe. Objected to as hearsay, sir.
The Court. Sustained.
Mr. Collins. Q. Well, on or about October 25 of 1946,
just prior to your release from Sugamo prison, were you
informed by any prison authorities of the terms and con-
ditions of your release!
A. Yes, I was.
Q. By whom!
A. By Major Austin Swanson.
Q. And when was that!
A. That was at 11 o'clock in the morning of October
25 of 1946.
Q. What did he state!
Mr. DeWolfe. Objected to as incompetent, irrelevant
and immaterial, hearsay.
The Court. Objection sustained.
99
Mr. Collins. Q. Were you informed at that time and
place by Major Swanson whether or not the Attorney
General of the United States acquiesced and consented to
your liberation from prison!
Mr. DeWolfe. Object to that as being hearsay, calling
for a conclusion.
The Court. Objection sustained.
Mr. Collins. Q. Were you informed at that time and
place by Major Swanson of Sugamo Prison whether or
not the State Department, the United States State De-
partment, acquiesced in your liberation?
Mr. DeWolfe. Objected to as hearsay, incompetent.
The Court. Objection sustained.
Mr. Collins. And we make an offer proof through this
witness, if your Honor please, that on or about October
24 or 25 of 1946
Mr. DeWolfe. Object to any offer of proof as being
incompetent.
The Court. The court has already ruled on that matter.
Mr. Collins. That is a different matter.
The Court. The court has already I'uled. Proceed Nvith
this witness.
Mr. Collins. Yes. We make this offer of proof.
Q. Isn't it a fact, Mrs. D' Aquino
The Court. Now just a moment. The court has indi-
cated to you clearly that it cannot accept an offer of
proof. You are limited to the witness on the stand and
you may examine her on any matter that you see fit.
Q. Were you informed at the time of your liberation
from Sugamo prison by xMajor Swanson on or about
October 25, 194G that the United States Attorney (xeneral,
Justice J)epartment and State Department acquiesced in
100
and consented to your liberation from Sugamo prison by
the army?
Mr. DeWolfe. I object to that as incompetent, irrele-
vant and immaterial; hearsay; leading and calling for a
conclusion.
The Court. Objection sustained.
Mr. Collins. That constitutes the matter we desired to
cover by an offer of proof. My understanding is that now
Your Honor bars us from making
The Court. There is nothing before the Court. Pro-
ceed.
Mr. Collins. Then I make the followdng offer of proof
on that point, that if the witness were permitted to an-
swer the question propounded, her answer would be
**yes'\
Page 235.
Ito, XL.4527:16-4529:2.
Q. In 1944 and 1945 you had conversations with Miss
Toguri about her work at Radio station, is that correct?
A. Yes, it is.
Q. And substantially the conversations were along the
same lines? She said the same thing about her work, is
that correct?
A. Radio work?
Q. Yes.
A. What kind of things?
Q. You tell me.
Mr. Collins. I object to that, if Your Honor please;
there has been no testimony elicited from the witness on
direct examination that related in any wise to the defend-
ant's work at Radio Tokyo.
101
Mr. DeWolfe. He went into all kinds of conversations
about her actions and this is proper cross-examination on
the other conversations.
The Court. Tf my memory serves me correctly, there
was no testimony developed concerning any conversations
in relation to her work at the radio station. T may be in
error, but I don't recall any.
Mr. DeWolfe. I don't recall any either, sir. He went
into conversations about returning, about food, war, Jap-
anese, and about citizenship. We think we are entitled to
cross-examine this witness about any conversation that
she had with the defendant.
The Court. If there is any doubt about it, let's have
the record read.
(Record read.)
The Court. You are assuming something not in evi-
dence.
Mr. DeWolfe. Did you talk to her about her radio
work!
Mr. Collins. I object on the ground it is improper
cross-examination and it is assuming a fact not in evi-
dence. It is incompetent, irrelevant and innnaterial.
The Court. Objection overruled. Read the question.
(Record read.)
The Court. You may answer.
A. Yes, once in a while.
Page 236.
Ito, XL-4538:20-4539:7.
''Q. And you both stated to each other you were
afraid you might be interned upon your return to
the United States; therefore neither one of you was
anxious to come back, isn't that correct!
102
Mr. Collins. I object to that on the ground that
is assuming something not in evidence, and on the
further ground it is not proper impeachment; on the
further ground no foundation has been laid; and on
the further ground it is improper cross-examination
and is incompetent, irrelevant and immaterial.
The Court. The objection will be overruled. Read
the question.
(Question read.)
Mr. DeWolfe. Q. That is about right, isn't it?
A. Yes.''
Page 237.
Pray, XLin.4711: 11-4712: 4.
^*Mr. Collins. Q. Now, during that period of time
was the defendant permitted to send mail to the
United States!
Mr. DeWolfe. Objected to as incompetent, irrele-
vant and immaterial.
The Court. Objection sustained.
Mr. Collins. Q. During that period of time was
the defendant permitted to receive mail from the
United States?
Mr. DeWolfe. Same objection, sir.
The Court. Same ruling.
Mr. Collins. Q. During the period of time that
you were at Sugamo jail, was the defendant permitted
to write either postcards or letters to her husband!
Mr. DeWolfe. Objected to as immaterial, incompe-
tent.
The Court. Objection sustained.
Mr. Collins. Q. Now, during that period of time
was the defendant permitted to receive mail from her
husband, if you know?
Mr. DeWolfe. Objected to as immaterial, incom-
petent.
The Court. Objection sustained."
I
103
Page 240.
Reyes, XXXIII, 3747:6-3748:9.
Q. T read this statement from exhibit 52, which you
say is true: ''To^ruri did not at any time express to me
any fear she had of the Japanese government or people
who supervised her Avork." Ts that statement true or
false!
A. That statement is inaccurate, sir.
Q. It is not true, is it!
A. At the time 1 made that statement, that was the
Q. It is not true, is it. Witness Reyes!
Mr. Collins. Just a moment, Mr. Witness, we ask for
a court ruling on that. The witness has not been given
an opportunity to answer, and counsel's questions are
argumentative and bullying.
The Court. Read the question.
(Question read.)
The Court. You may answ^er that question.
A. I answered the question. That statement is true,
and I understand I am given the privilege of adding an
explanation!
The Court. You may explain it.
The Witness. If I may, sir, I said many times to these
two gentlemen of the F.B.I, that [ had heard the defend-
ant say to me on many occasions under many different
circumstances that she was afraid of the Japanese Anny,
and the circumstances under which she had to work: and
I was asked again and again if 1 could recall specific
instances when she did say this, who was therc^ and at
the time of this questioning and under the conditions and
the atmosphere of this questioning, 1 could not recall any
specific instances. This was the language put into the
statement not by myself, and I signed that statement.
104
Page 240.
Reyes, XXXni-3769:20-3771:6.
Mr. DeWolfe. Q. Did you sign any other statement
at San Francisco that is false?
Mr. Collins. I object, if Your Honor please. The state-
ment itself would be the best evidence.
The Court. Lay the foundation for it.
Mr. DeWolfe. Q. Did you sign any other statement in
San Francisco before the Federal Bureau of Investiga-
tion?
A. I did, sir.
Q. Are there false statements in that statement?
Mr. Collins. I object to that, if Your Honor please,
on the ground no foundation has been laid. The state-
ment itself is the best evidence.
The Court. The objection may be overruled. He may
answer.
The Witness. I can't remember without seeing the
statement, sir.
Mr. DeWolfe. Q. You have to look at the statement
to see whether or not you have something in there over
your signature that is false?
A. Yes, sir. May I explain why!
Mr. Collins. I object to that as purely argumentative.
Mr. DeWolfe. No, answer the question.
A. Yes, sir.
Mr. Collins. Just a moment. We ask for a ruling of
the Court on that. The objection is that the question is
absolutely argumentative.
The Court. Read the question.
(Question read.)
Mr. Collins. Object on the further ground that no
foundation has been laid.
105
The Court. The objection is overruled.
Mr. Collins. Improper impeaching question.
The Court. You may answer.
A. The answer is '*Yes".
Page 240.
Reyes, XXXIII-3776:5-17.
Q. About 9. Did you broadcast your own prisoner of
war message!
A. I did.
Q. Remember what you said in it!
A. Partially, yes.
Q. Did you make laudatory references to the Japanese
program of rehabilitation in Manila?
Mr. Collins. I submit, if your Honor please, the mes-
sage itself is the best evidence of its own content; no
foundation has been laid, it is incompetent, irrelevant and
immaterial.
The Court. The objection will be overruled. He may
answer.
A. I may have, sir.
Page 241.
Reyes, XXXIV-3868:6-24; 3869:19-3870:8.
Mr. DeWolfe. Does exhibit 62 purport to be a script of
the Zero Hour?
Mr. Collins. 1 submit, if your Honor please, that that
calls for the oi)inion and conclusion of the witness. The
document delivered here is a photostat of some document.
The Court. If he knows, he may answer. T}i(> objec-
tion will be overruled.
A. The question again, please?
106
Mr. Collins. We object to the question on the ground
that it asks for what the document purports to be, which
would not be within the
The Court. Read the question.
(Question read.)
Mr. Collins. T object on the ground it is calling for
the opinion and conclusion of the witness as to what it
purports to be.
The Court. The objection will be overruled; he may
answer.
A. It says here on this photostat copy, ^'The Zero
Hour'', so I suppose that purports to be a Zero Hour
script.
Q. Exhibit 63, on behalf of the United States for iden-
tification; that purports to be a complete Zero Hour
script, doesn't it?
(Handing to witness.)
Mr. Collins. I submit, if your Honor please, that what
it purports to be is incompetent, irrelevant and imma-
terial and is calling for the opinion and conclusion of the
witness, and on the further ground that it is not the best
evidence, and that no foundation has been laid for the
introduction of any such testimony.
The Court. If he knows he may answer. The objection
will be overruled.
A. What was the question, please f
The Court. Bead it.
(Record read.)
A. It says on the first page, *'Zero Hour".
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